Time for Ju­di­ciary To Stand

Supreme Court must fo­cus on pro­tect­ing ju­di­ciary’s in­de­pen­dence than run­ning the BCCI

The Day After - - CONTENT - By DANFES

Af­ter months of dilly dal­ly­ing and un­cer­tainty, the Naren­dra Modi govern­ment fi­nally de­cided to ap­point Uttarakhand high court chief jus­tice KM Joseph to the Supreme Court — nearly seven months af­ter his name was first rec­om­mended by the Supreme Court col­legium.

The Cen­tre also re­jected two more names — both ad­vo­cates — rec­om­mended by the SC col­legium for ap­point­ment as judges of the Jammu and Kashmir high court while ap­point­ing two oth­ers — one woman lawyer (a first for the high court in the mil­i­tancy hit state) and a ju­di­cial of­fi­cer.

Should those who fol­low the In­dian le­gal sys­tem and the pulls and pres­sures that have come to symp­tomise the notso-har­mo­nious re­la­tion­ship be­tween the ju­di­ciary and the ex­ec­u­tive in the last few years feel vin­di­cated that Joseph’s ap­point­ment has come through? Or, should there be ques­tions about the dozens of cases the govern­ment has re­jected ar­bi­trar­ily — many of them in com­plete vi­o­la­tion of set­tled law and the ex­ist­ing mem­o­ran­dum of pro­ce­dure (MoP).

Should we hail the cur­rent govern­ment for­mak­ingthe“high­est-ever”ap­point­ments of high court judges in 2016 (126), a num­ber that could be sur­passed this year? Or, should some­body also un­der­line the fact that the Modi govern­ment may also have set the du­bi­ous record of max­i­mum num­ber of re­jec­tions?

But, any ques­tion in­volv­ing the re­la­tion­ship be­tween the ju­di­ciary and the ex­ec­u­tive can­not be an­swered in a sim­ple yes or no. The an­swers, here, will have to be pro­vided by the Supreme Court.

The govern­ment can’t be ab­solved of the blame for try­ing to brow­beat the ju­di­ciary ei­ther by re­ject­ing names, mostly on friv­o­lous grounds, rec­om­mended by the col­legium, or sit­ting on the names for long pe­ri­ods without of­fer­ing any rea­son, or send­ing them back for re­con­sid­er­a­tion.

The Supreme Court col­legium un­der the cur­rent Chief Jus­tice of In­dia Di­pak Misra doesn’t ex­actly come out with its hon­our and pres­tige in­tact. Es­pe­cially af­ter the ab­ject man­ner of sur­ren­der in sev­eral cases that the govern­ment wanted re­con­sid­ered or mod­i­fied.

The rot, to put things in per­spec­tive, started much be­fore. An ear­lier col­legium had uni­lat­er­ally with­drawn the rec­om­men­da­tion of a pre­ced­ing col­legium to trans­fer Gu­jarat high court judge MR Shah — who was ap­pointed chief jus­tice of Patna high court — and Delhi high court judge Valmiki Mehta. This hap­pened af­ter the Modi govern­ment sat on the trans­fer rec­om­men­da­tions in­def­i­nitely without of­fer­ing any ex­pla­na­tion.

De­spite mak­ing loud noises over trans­parency, the govern­ment and the col­legium con­tinue to be as opaque, if not more, as their pre­de­ces­sors on is­sues con­cern­ing ap­point­ments and re­jec­tions of names. The cur­rent col­legium is ac­tu­ally act­ing like an ex­ten­sion of the govern­ment.

Con­sider this: it was an open se­cret that the Modi govern­ment didn’t want Cal­cutta high court judge Anirud­dha Bose as chief jus­tice of Delhi high court. Af­ter sit­ting on the file for al­most six months, the govern­ment re­jected his name and said he didn’t have the ex­pe­ri­ence to han­dle such a big high court. The same govern­ment, how­ever, had no is­sues in ap­point­ing Bom­bay high court judge VK Tahilra­mani as chief jus­tice of Madras high court.

On ear­lier oc­ca­sions too, Cen­tre has pro­moted newly ap­pointed chief jus­tices to big­ger high courts, which I have writ­ten about in one of my re­cent ar­ti­cles.

But, the col­legium suc­cumbed to govern­ment pres­sure, once again, and changed its rec­om­men­da­tion for Bose. He has now been ap­pointed chief jus­tice of Jharkhand high court. It is in­ter­est­ing to note that while Delhi high court has a sanc­tioned strength of 60 — 45 per­ma­nent and 15 ad­di­tional judges — Madras high court has a sanc­tioned strength of 75.

What are the op­tions in front of the col­legium if the govern­ment sits on names?

Many le­gal ex­perts feel that by in­def­i­nitely sit­ting on names, par­tic­u­larly names like Karnataka ju­di­cial of­fi­cer P. Kr­ishna Bhat, the govern­ment is com­mit­ting con­tempt of court and run­ning against set­tled pro­ce­dure. Bhat’s name was rec­om­mended and later re­it­er­ated for ap­point­ment to the Karnataka high court nearly two years ago.

Last month, ac­tivist-lawyer Prashant Bhushan even filed a pe­ti­tion in the Supreme Court on this im­por­tant is­sue on be­half of the Cen­tre for Pub­lic In­ter­est Lit­i­ga­tion. The plea says that by re­turn­ing the names on ques­tion­able grounds, the Cen­tre is stonewalling ap­point­ments for “oblique and vested in­ter­ests”, some­thing that is tan­ta­mount to “in­ter­fer­ence in the due process of law and the in­de­pen­dence and in­tegrity of the ju­di­ciary”.

The pe­ti­tion is yet to come up for hear­ing.

The Supreme Court, if it wants, can even take up the mat­ter of the govern­ment not clear­ing names on the ju­di­cial side and let its view be known in clear terms. But, that de­ci­sion has to be taken by CJI Misra, who is the mas­ter of the ros­ter.


With se­nior Supreme Court judges plan­ning to raise the is­sue of Joseph’s se­nior­ity with CJI Misra, the lat­ter has a chance to up­hold the in­de­pen­dence of the ju­di­ciary.

It is in­cum­bent upon the Supreme Court, es­pe­cially those in the col­legium, to stand up to the govern­ment on is­sues that con­cern the in­de­pen­dence and in­tegrity of the in­sti­tu­tion. If do­ing so re­quires it to is­sue strict or­ders on the ju­di­cial side, so be it. Pro­tect­ing the in­de­pen­dence of ju­di­ciary is any day more im­por­tant than run­ning the BCCI or de­cid­ing whether peo­ple should stand up when na­tional an­them is played in cin­ema halls. Ci­ti­zens un­der­stand that. But, do our hon’ble judges in the col­legium see it that way too?

Supreme Court Jus­tice KM Joseph (left) in a file photo

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