An avoidable war of attrition

Chief Justice T.S. Thakur’s public complaints over executive delay in clearing judicial appointments must be seen not as plaintive cries, but an admonition to the government to respect constitutional redlines

August 17, 2016 01:38 am | Updated September 22, 2016 03:19 am IST

160817 - Oped - Judicial appointments

160817 - Oped - Judicial appointments

Francis Bacon wrote in 1625, “Let judges also remember, that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.” Throughout history, strong rulers facing resistance from an unappreciative judiciary have resorted to all kinds of measures to bring judges to heel.

Global precedents When components of his New Deal got struck down by the Supreme Court of the United States, President Franklin Delano Roosevelt threatened to increase the number of its judges from nine to 15. He reasoned that packing the court with six new judges would bring about a new majority that would side with the government. Shortly thereafter, ‘a switch in time saved the nine’. In 1937, Justice Owen Roberts switched his vote to side with the government-leaning judges, and FDR thereafter did not need to pursue court packing.

In Pakistan the Army got used to tame judges when Chief Justice Muhammad Munir invented the Doctrine of Necessity to legitimise Governor General Ghulam Muhammad’s dismissal of the Prime Minister. Some years later, the doctrine granted absolution to General Ayub Khan’s coup. Still later, >General Zia-ul-Haq got the judges to swear personal allegiance to himself as President. One of the few who refused and resigned his position was the great Justice Dorab Patel. Further down, General Pervez Musharraf tried to bully Chief Justice Iftikhar Muhammad Chaudhry into resigning. The resultant backlash of a lawyers’ movement ended in the fall of General Musharraf.

India too has had its ‘lionhearts’ striving to keep the throne balanced in the path of dharma. There was a near irretrievable loss of credibility for Peshwa rule over the Maratha empire when the ever-righteous Chief Justice Ramshastri Prabhune resigned after convicting the sitting ruler, Peshwa Raghunathrao, of the murder of his predecessor, Peshwa Narayanrao, in 1773.

From Nehru to Indira In the first decades after Independence, Jawaharlal Nehru’s government had its own misgivings with the judiciary’s interpretation of the new Constitution. The initial interpretations of the fundamental right of free speech led to the first amendment of the Constitution. The court’s rulings on property rights led to several constitutional amendments. But, all told, the initial decades showed a healthy institutional respect, with the legislature and judiciary working in tandem.

Indira Gandhi was a different matter. Her relationship with the judiciary was fraught with confrontation and conflict. It did not help that she saw some judges, such as Justice K.S. Hegde, as owing allegiance to the Congress (O) which opposed her. The Supreme Court’s judgments striking down the nationalisation of banks and the abolition of privy purses made it look like an “arena for constitutional quibbling for men with long purses”. Cabinet ministers led by Mohan Kumaramangalam called for a “committed judiciary” which was deferential to the socialistic temper of the times.

When the Supreme Court’s 11-judge ruling in the > Golaknath case put property rights on a fundamentally unbreachable pedestal, she promoted to the Supreme Court, judges who publicly vowed to undo the judgment. Things came to a head in 1973 in the Kesavananda Bharati case. All 13 judges of the court sat for months on end to reconsider Golaknath . Though Golaknath was overruled, parliamentary power to amend the Constitution was also restricted to not damaging its basic structure. The government won its basic case, but on a small majority of seven judges against six, it lost the larger argument of unbridled power.

The day after the judgment, three of the seven judges in the majority (including Justice Hegde) were superseded for the office of Chief Justice. The fourth in seniority, Justice A.N. Ray, was appointed Chief Justice, leading to the resignation of the three superseded judges. C.K. Daphtary, India’s first Solicitor General, quipped, “The boy who wrote the best essay won the first prize.”

These events cast their shadow on the declaration of Emergency in 1975, shortly after the Allahabad High Court invalidated Ms. Gandhi’s 1971 election to the Lok Sabha. While her appeal was pending in the Supreme Court, Ms. Gandhi retrospectively amended the Constitution to immunise her election from legal attack. That attempt was invalidated by the court, which nevertheless upheld her election on other grounds.

In those tumultuous times, the Supreme Court’s darkest moment was when by a four-one majority, it upheld the government’s contention that a citizen’s right to life could be suspended during an emergency. The lone dissenter, Justice H.R. Khanna, was thereafter soon superseded for the office of Chief Justice, and he too resigned from the court. >The Emergency also saw inconvenient high court judges being transferred to faraway courts. Other less documented measures to render judges docile were also used.

The judicial pushback The lifting of the Emergency and the election of a non-Congress government saw the judiciary attempt to salvage its independence. Public Interest Litigation (PIL) became a new mantra for judicial intervention in fields of executive neglect. Soon the judiciary became an active stakeholder in governance. Despite the 1976 judgment in Sankalchand Seth , upholding the Government’s powers of transfer, the 1982 judgment in S.P. Gupta began defining the judiciary and executive’s roles in consultations on the appointment and transfer of judges.

The >fall of the Babri Masjid , the agitation over the Mandal report, and an era of fragile coalitions set the stage for the 1993 judgment in the first Supreme Court Advocates-on-Record case. The court ensured that the judges would have the dominant voice in judicial appointments and administration. A collegium consisting of the Chief Justice and senior judges would have the last word on appointments and transfers. Subsequent judgments built on the structure and strengthened the collegium system. Internally, the government and the judiciary worked out a memorandum of procedure, which regulated the process of appointments and transfers.

For two decades, ruling coalitions chafed at judges anointing newer judges as their successors. In the meanwhile, PILs and election disputes ensured that politicians remained ever wary of the courts.

Executive reassertion The >2014 general election , which threw up a stable single-party majority, saw the political class strike back. One of the first acts of the Narendra Modi government was to shaft the collegium-cleared nomination of Gopal Subramanium to the Supreme Court. Mr. Subramanium’s prosecution of Bharatiya Janata Party leader Amit Shah and his appearance as the United Progressive Alliance’s Solicitor General in several matters arising out of the Gujarat riots of 2002 rendered him unpalatable to the new rulers.

A constitutional amendment, backed by the Opposition, including the Congress, next followed. It sought to take away the power of appointments and transfers from the collegium and vest it in a new body called National Judicial Appointments Commission (NJAC), where judges would be represented but would not have a dominant say. A constitutional challenge to the amendment was entertained by the Supreme Court. Pending the hearings, the then Chief Justice, H.L. Dattu, announced that he felt inhibited from participating in meetings about the independent members to be appointed to the NJAC. Resultantly, no substantive appointments came to be made through 2015, and many additional unconfirmed judges had to be continued in office by virtue of judicial orders of extension.

The constitutional amendment was struck down in 2015 by the Supreme Court as >violative of judicial independence , which is part of the Constitution’s basic structure. The court’s institutional memory, of the Emergency and its aftermath, played a significant role in the decision. A subsequent order also directed the government to finalise a new memorandum of procedure in order to regulate fresh appointments. After the first judgment, the unconfirmed judges were confirmed in their posts. Appointments were recommended and processed in many cases, including some appointments to the Supreme Court.

However, the drafting of the memorandum of procedure is as yet not finalised. The government has sought to retain powers to veto candidates recommended by the collegium on grounds of “public interest” or “national security”. The judiciary led by the collegium has refused to let in a Trojan horse into its citadel of independence.

Over 75 appointments to the high courts and some transfers appear to be stuck in the process for over eight months. In a country with around 1,200 judges in the constitutional courts, and nearly 400 vacancies at that level, this is an unacceptable position. Judges retire regularly, and if no fresh appointments are made, it is possible to bring the system to a complete halt.

In this situation, one cannot fault Chief Justice T.S. Thakur who, in April this year, got emotional in the Prime Minister’s presence at a conference of judges. This week, in his Independence Day speech at the Supreme Court, he has again lamented the government’s lack of alacrity in the matter of appointments.

A government which wants to be seen as dedicated to the rule of law can ill-afford a war of attrition. The Chief Justice’s public remonstrances must not be seen as the plaintive cries of the least dangerous branch of government. They must instead be received as an admonition on Rajdharma from the Bhishmapitamaha of the judiciary. An unnecessary Mahabharata must be avoided by addressing institutional distrust. Caesar must render unto the judges what is theirs — a constitutional assurance of independence.

Sanjay Hegde is a senior advocate of the Supreme Court.

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