Was the Centre right in resisting Justice Joseph’s elevation?

The Centre is reclaiming lost constitutional space from the judiciary

May 04, 2018 12:02 am | Updated 12:02 am IST

Law, Legal System & Court related vector icon set.

Law, Legal System & Court related vector icon set.

The Union government’s request to the collegium to reconsider the latter’s recommendation to appoint Justice K.M. Joseph to the Supreme Court has only reaffirmed the belief that the Constitution continues to be a contested space. Granville Austin, a scholar of the Indian Constitution, described the differing views of the judiciary and Parliament on the Constitution’s interpretation and scope as a struggle for the custody of the Constitution. It must be recollected that the judiciary, through interpretative gymnastics, hijacked the constitutional space of the executive in the matter of appointment of judges to the constitutional courts.

While doing so, it consistently ignored the fact that the Constituent Assembly had categorically rejected the proposal to vest the Chief Justice with veto power over appointments.

Ceding constitutional space

Successive Central governments have further ceded constitutional space to the judiciary by abdicating their duty to seek clarifications about the nature of appointments recommended by an opaque body. Denying the Centre the right to ask questions furthers an isolationist view of judicial independence, which does not bode well for a constitutional system of checks and balances. The Centre ought not to be accused of incursion into judicial independence since the Supreme Court itself had recognised the government’s right to send back recommendations in the Second Judges’ Case and Third Judges’ Case.

The rule of seniority as a criterion for elevation to the Supreme Court has been recognised by the Supreme Court in the Second Judges’ Case and Third Judges’ Case. The collegium is duty-bound to justify why it chose to ignore the seniority of not one or two but 11 Chief Justices for elevation to the Supreme Court. The collegium cannot, with respect, simply state that Justice K.M. Joseph is “more deserving and suitable” than other judges. It should also justify why it chose to recommend only two names when there were six vacancies in the Supreme Court on the date of the recommendation. Withholding other names would have a definite impact on the seniority of the remaining judges, when they are appointed. Perhaps the collegium will also have to explain why it chose to delay the recommendation to two vacancies for a considerable period of time, and why it continues to delay recommendations to other vacancies.

The seniority criterion could have been ignored in case the Supreme Court felt that the diversity quotient would increase. When two judges from Karnataka were sworn in in February 2017, there was no representation from the State at that point of time, and the appointments furthered diversity in more than one way.

Similarly, seniority was overlooked to give representation to Himachal Pradesh and Bihar when Justices Navin Sinha and Deepak Gupta were elevated on the same day. The instance of Kerala having three judges during the tenure of Chief Justice of India Balakrishnan also overlooks the fact that two of them belonged to communities that were not represented in the Court at that time. All the three instances pointed out by Kapil Sibal in his article in The Hindu (Editorial page – “A dangerous incursion”, May 1, 2018) do not substantiate the argument he makes.

It is time to address the issue of representation of the oppressed communities on the Bench, not just in the Supreme Court but across High Courts. Denying them representation, while repeatedly making appointments of the legal elite, would only turn the court into “a self-perpetuating oligarchy”, as warned by the late Justice Ratnavel Pandian in the Second Judges’ Case.

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