By Sujit Bhar
The Supreme Court of India seems to have had enough of the government of India’s constant interference in the judicial appointments processes, throwing into disarray the carefully planned system that the collegium has developed for recommending candidates for judgeship.
Recently, the Court sent a stern message to the government though Attorney General (AG) R Venkataramani, saying that it (the government) cannot continue with its policy of “picking and choosing” judges recommended for appointment by the collegium. This, said the Court, is not just unfair to the appointees, but also “creates an anomaly in the system”.
The bench of Justices SK Kaul and Sudhanshu Dhulia did not stop at that. The bench reminded the AG that it was within the Court’s power to take action against the government’s biased approaches, and if push comes to shove, it might even stop assigning cases to any particular bench. The reference about this was about benches of judges that have been chosen by the government out of turn and with biases.
The comments from the judges came while hearing a plea that wanted the Court to crack the whip, so to say, and if needed start contempt proceedings against the government for not obeying the Court’s order on appointments, meaning the recommendations of the collegium.
The bench pulled no punches and it promises to be a bare-knuckles fight. The judges made it clear to the government that political affiliations of lawyers, recommended for judgeship by the collegium, has been of no concern to the courts of India and it should jolly well be of no concern to the government either. There cannot be any cherry picking on this.
What the Court has said can be, otherwise, termed a warning, and the critical issue of the separation of powers institutionalised by the Constitution of India has to be respected, whether the government likes it or not.
Several chief justices of India in the past have toyed with the government over this very specific issue—former Chief Justice of India TS Thakur failed to even hold back his tears in public—but governments have been stubbornly following a policy that not only ties shackles around the Courts’ feet, but also hampers the justice delivery system of the country. This might help the government’s political agenda, but definitely drives a spanner into the common man’s journey to find justice.
Justice Kaul’s reference was also obliquely about some recent appointments to the Punjab and Haryana High Court where the government cleared only three names out of a total of five advocates recommended for elevation by the Supreme Court collegium. It was not just a show of apparent power that the government has over judicial appointments, but also a direct affront to the good judgment of the judges in the Collegium, an affront to their sensibilities, as well as their intellect.
It was as if the government was pointing out what should or should not be done and was expecting the entire judiciary to just toe the line, throwing out of the window the separation of powers theory. Such action by the government makes it clear that the legislature, despite all its public exhortations, isn’t one bit worried about the mountain of pendency of cases in Indian courts. The government has created a new pendency queue instead, that of the appointment of judges.
The Court also made it clear that “…once a judge has been appointed, where they perform their judicial function is a matter of no concern to the government.”
Then came the warning, and certainly not delivered in mufti. Said the judge: “Tomorrow, the collegium can collectively advise to not assign judicial work to a particular bench. Don’t make us take this step, but it is not beyond our powers to do it. This is not an off-hand remark, but something I have discussed with the collegium.”
The genesis
The confrontation between the Supreme Court and the Union government has been long, but it has morphed into an almost open war in recent times, especially after a former Union Law minister made some disparaging comments about the judiciary. Since the top court of the country invalidated the National Judicial Appointments Commission (NJAC) in 2015, the government’s irritation against the collegium system has been rising. They have called it “opaque”, meaning that the Court does not in any way validate judicial appointments and transfers.
On October 17 last year Kiren Rijiju, who was then the Union law minister, commented that the judges in the collegium were “preoccupied” with making judicial appointments when their primary job is delivering justice. That was when Justice NV Ramana was the chief justice. Rijiju has been removed from the law ministry, but the acrid taste in the mouth stays.
While the appointments are being regularly delayed by the government, the issue with advocates being promoted to judgeship has taken an even uglier turn, with each candidate’s background undergoing an almost forensic scrutiny and any political affiliation of the lawyer at any point in his career being looked into. Anything that the current dispensation at the centre feels uncomfortable with means he/she is shifted to a cold storage.
The bench was clear on this, and its argument seems watertight. It said: “…you have a system of governance where different parties govern different states… some lawyers whose names are recommended, even if they are not politically very active… may have some connections with the government or the ruling dispensation…” But the collegium still clears it, said the bench.
The logic is simple, as Justice Kaul explained. He said it would be obvious that if a lawyer is holding a law officer’s post, they would be having some connection with the ruling dispensation. What the collegium makes sure of is that these lawyers “…should not have a deep-rooted political aspect that affects their judicial work.”
“You have to balance these factors,” said the bench, adding “forty per cent of states are governed by opposition parties. There will, therefore, be people holding law officer positions or otherwise who have some association.”
Over the years, the bench has been made up of a lot of senior lawyers who deserved their judgeship. And if a reputed lawyer is not allowed to move to the bench by the government, just because, during his/her long career, he/she had shown some bias towards a particular political party that the government does not like, it not only disturbs seniority, but also creates a situation where it becomes difficult to persuade a successful lawyer to join the bench.
Venkataramani has said that he would be taking up the issue with the government and would convey the bench’s comment that even in recent recommendations selective appointments have been made. The AG has requested for time to have a discussion with the government, so the bench has posted the matter for hearing on November 20.
One has to understand that the government has been doing this as a matter of policy, hence is unlikely to back down soon, just because this bench has come out guns blazing. The issue will remain hanging fire for a while now, but the gloves are surely off.
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