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Courting a judicial crisis

The Indian Constitution has its political democratic texts (from election to power) and rule of law texts (from fundamental rights to review of all aspects of governance).

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Rajeev Dhavan
Senior Advocate, Supreme Court 

The Indian Constitution has its political democratic texts (from election to power) and rule of law texts (from fundamental rights to review of all aspects of governance). The custodians of the ‘political texts’ are elected politicians and custodians of the rule of law texts, including fundamental rights and constitutional principles, are the judges of the Supreme Court and the high courts. India’s governance requires political texts to ensure democracy. Without the rule of law there would be tyranny. Our political custodians lack institutional morality. Our judicial custodians are in danger from constitutional amendments and executive interference.

Elections enable political selection, but inappropriate judicial selection can demolish the rule of law. During the Nehru era, in 1959, Home Minister GB Pant reported that 210 out of 211 judges were made on the advice of the CJI. Nehru wanted Chagla as CJI but it fizzled out. Indira Gandhi wanted ‘committed’ judges but her appointments turned out distinguished judges. Between 1983 and 1993, seven out of 547 appointments were not in consonance with the CJI’s advice. From 1993 to 2018, there have been good, and doubtful, appointments on the basis of seniority and exceptional ability. Till 1978, the ratio of Chief Justices of High Court (CJHC) to non-Chief Justices (known as puisne judges) was almost 50:50. In 1978, a controversy arose on the appointment of DA Desai, who was No. 4 in seniority. His seniors in Gujarat resigned. In recent years, it has been rare to appoint non-CJHC. There was no controversy over puisne judges, notwithstanding some murmurs. If the government or the collegium is interested in a ‘judge’ for the SC, they transfer him to another court to bring him in the zone of Chief Justices. Even then, some are ignored, and others waiting in the gallery, until selection. It cannot be said all appointments are whimsical.

On a doubtful interpretation of the Constitution in 1993 and 1998, using political pressure as an underlying excuse, the SC took over the appointments to create a collegium of senior judges. In 2015, the SC rejected the constitutional amendment of 2014 to create a National Judicial Appointments Commission (NJAC), because it was structured in a way that did not obviate untoward influences. The corresponding statute was also struck down. This reinforces the collegium. Political pressure did not stop. CJI Thakur’s attempts to fill appointments were obstructed. In some cases, the PM took his own time. Justice Joseph’s appointment was not acceptable to the government and was delayed because he struck down President’s rule in the Uttarakhand High Court. A consensus system between the government and the collegium is inevitable. But it can become controversial in the procedure followed, and the actual selections. It needs scrutiny. Between 2014 and 2019, or earlier, we need to know how many saffron-inclined SC and HC judges were appointed, or those with questionable ability.

This is a crisis, not controversy. Full court and collegium meetings are sometimes acrimonious. In January 2018, four judges rebelled against CJI Misra. The present crisis started in 2018. A judge who praised the regime was appointed to the SC. But at its meeting on December 12, the collegium recommended Justice Menon, CJ, Delhi High Court, and Justice Nandrajog to the SC. On December 30, Justice Lokur retired from the SC, to be replaced by Justice Arun Mishra. On January 10, these two names were scrapped and replaced by Justice Maheshwari (Karnataka CJ and No. 21 in all-India seniority) and Justice Sanjiv Khanna (No. 4 in Delhi and No. 33 in all-India seniority).

According to the 1998 SC judgment, the test is seniority and/or ‘exceptional’ ability. Justice Khanna is the nephew of Justice HR Khanna, who dissented in the 1976 Emergency detention case. CJIs are appointed by seniority. Justices Ahmadi and Kuldip Singh were appointed to the SC on the same day, but Ahmadi was sworn in a few minutes earlier to become CJI. If seniority is maintained, Justice Chandrachud will retire on November 11, 2023, and Justice Khanna will be CJI from then to May 14, 2024, if the practice of appointing CJI for short terms is practised (as with CJs Sarkar, Shah, KN Singh). Justice Khanna will also become an influential member of the collegium earlier. 

Former CJI Lodha asks if six weeks earlier Justice Maheshwari was not suitable, how did he become eligible in 2019! Of the judges who did not approve in 2018, four were the same in the collegium in 2019. Ex-CJI Balakrishnan calls the appointments ‘a sad thing’ and former CJI Khehar (who decided in favour of the collegium system in 2015) feels wider consultations are needed. 

Politicians must be watching with glee, because they want the power of making judicial appointments back. The easier solutions are: (i) full transparency on what is being considered, which should be properly minuted, (ii) consultation with full SC, (iii) consultation within the high court, and (iv) full declaration of interaction with the government. But even this is not enough. The real solution is a proper NJAC, with open hearings. Nothing short will do.

How will it happen? Transparency and consultation are immediately possible if the SC so wishes. The real solution is a constitutional amendment and a law which will make ‘framework’ changes and incorporate the easier solution. The fate of the Constitution and governance depends on this.

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