Judges & GOI: A Murky Tale

On Jan 26, 1950, the first chief justice of India took office under the new Constitution. Three days before CJI Harilal Jekisundas Kania took this oath, his comments on a Madras high court judge (Bashir Ahmed) evoked a sharp reaction from the prime minister. Nehru wrote to home minister Sardar Patel that Kania was being “unjudicial and indeed improper”. Patel deputed the home secretary to convince Kania not to give an adverse opinion on Justice Bashir.Thus, the executive’s attempts to influence CJI, for appointments to constitutional courts, are as old as the Supreme Court itself. The Nehru era saw such attempts fuelling apprehensions about the dilution of judiciary’s independence.In 1958, the first law commission, led by MC Setalvad, in its 14th report put the blame primarily on chief ministers becoming a source of patronage for those aspiring to become HC judges.Along similar lines, the second CJI M Patanjali Sastri said after retirement that marked deterioration in standards in HCs was “mainly due to unsatisfactory methods of selection that are often influenced by political and other extraneous considerations”.The seventh CJI PB Gajendragadkar objected to home minister GL Nanda’s proposal for large-scale transfers of HC judges, saying it would create “great bitterness” and “uneasiness” among judges and impact the independence of judiciary.Till 1970, the executive always appointed the seniormost among SC judges as CJI. And amidst questions about appointments to constitutional courts, every CJI’s public statement was that govt had given primacy to his views.After ego-bruising judgments in the privy purses, bank nationalisation and Kesavananda Bharati cases, a vindictive Indira Gandhi govt binned the ‘seniormost’ criterion. It appointed Justice AN Ray, fourth in seniority, as CJI – superseding JM Shelat, KS Hegde and AN Grover. The three self-respecting judges promptly resigned on April 25, 1973.In a crude defence of these supersessions in Parliament, steel and mines minister S Mohan Kumaramangalam, said, “Certainly, we as a govt have a duty to take (into consideration) the philosophy and outlook of the judge in coming to the conclusion whether he should or should not lead the Supreme Court.” It was a search for judges compatible with govt. Justice Ray fit the bill.In 1976, during the Emergency, leading lights of the apex court really capitulated to brute executive power. In the ADM Jabalpur case, they cravenly upheld the suspension of fundamental rights, including right to life. Justice HR Khanna’s courageous solo dissent invited govt wrath.When Ray retired in Jan 1977, Indira govt superseded Justice Khanna to appoint Justice MH Beg as CJI. Justice Khanna resigned. Justice Beg, who had aligned with govt’s view in the Kesavananda and ADM Jabalpur cases, on retirement became director of National Herald and received Padma Vibhushan. Since then, GOI has never appointed a CJI by supersession. But it continues to attempt appointing loyalists as constitutional court judges.Post-Emergency, Janata Dal govt implemented an important change by insisting that CJI must consult his two most senior colleagues while nominating persons for judgeship, in order to broad-base the assessment of merit. But even during the short-lived Janata govt, some bar bodies protested against supersession of HC judges, ostensibly to appoint the top three SC judges’ favourites.With Indira returned as PM in 1980, lengthy delays in filling vacancies in SC and HCs became common — such delays have been virtually weaponised in HC judge appointments today. The new govt’s first appointment to SC in Dec 1980 was Baharul Islam, a Congressman who dabbled in politics and judgeship per party diktat.In the 1990s, through two judgments, SC wrested back control of selecting judges, with a collegium system intended to insulate judicial appointments from executive interference.When AS Anand was CJI (1998-2001), President KR Narayanan was very insistent about an early appointment of Justice KG Balakrishnan as an SC judge, which would have given him more than five years as CJI. Narayanan threatened not to sign warrants of appointments of judges till his wishes were fulfilled. CJI Anand held several rounds of discussion with Narayanan to mellow him down.During CJI Anand’s tenure, Justice RC Lahoti, junior to Justice YK Sabharwal in Delhi HC, was brought to SC directly — this involved a manoeuvre in which Justice Sabharwal was first sent to Bombay HC, as chief justice. Later, Sabharwal too became an SC judge and succeeded Lahoti as CJI.Justices Dipak Misra and J Chelameswar took oath as SC judges on Oct 10, 2011. Underlying tension between them exploded in public after Misra became CJI as he had taken oath ahead of Chelameswar. The latter employed every possible method — including an infamous press conference — to attempt to dislodge Misra and become CJI.Over the last couple of decades, many supersessions and unwarranted transfers of HC judges have taken place. Appointment of Justice JB Pardiwala as an SC judge was meant to prevent Justice Dipankar Datta from becoming CJI. Had Datta, who was senior among the two, taken oath before Pardiwala, then both would have had more than a year’s tenure as CJI.It’s against this fervent backdrop that Parliament passed the National Judicial Appointments Commission Act in 2014. Its proclaimed target was to infuse transparency in the opaque appointment process of judges and to stop the ‘you scratch my back, I scratch yours’ phenomenon. SC, while admitting to shortcomings in the collegium system, struck NJAC down saying that it would hurt judicial independence.There is a way both aims — maintain the primacy of judiciary in the judge-selection process and infuse transparency in this process — could be achieved. NJAC composition could be altered to comprise CJI and four most senior SC judges, law minister and an eminent jurist.