BRP Bhaskar
Gulf Today
The Narendra Modi government ended its seven-month-long standoff with the Judiciary over the appointment of Uttarakhand High Court Chief Justice KM Joseph as a judge of the Supreme Court last week, paving the way for his elevation.
While rejoicing over the resolution of the issue, there is need to evaluate the results of the pulls and pressures that preceded it and the lessons they hold. Also, some systemic issues have come up and they need to be addressed.
The Constitution only requires the Executive to consult the Chief Justice of India in the appointment of judges. But the Supreme Court, exercising its exclusive right to interpret the Constitution, shifted primacy from the Executive to the Judiciary. While doing so, in a concession to democratic practice, it established a body, styled as Collegium, comprising the Chief Justice and a specified number of senior most judges, to decide on appointment, promotion and transfer of judges.
Successive governments meekly accepted the incestuous system created in the process. The Modi government enacted a law to set up a National Judicial Appointments Commission, in which both the Executive and the Judiciary are represented, to pick judges. The Supreme Court struck it down.
In December 2015 the court asked the Centre to draft a new memorandum of procedure (MoP) for appointment of judges in the light of its decisions. Two and a half years later a draft acceptable to both the court and the government has still not emerged.
The government’s displeasure over the court’s scuttling of the NJAC found expression in heavy delay in clearance of names recommended by the collegium. When the collegium proposed Justice KM Joseph’s elevation, the government returned the recommendation for reconsideration.
The rules permit the government to seek reconsideration of a recommendation. If, after reconsideration, the collegium reiterates the recommendation, the government has to accept it.
The government could not cite anything in Justice Joseph’s record that renders him unfit for elevation. Its objections were based on extraneous considerations like availability of others who became judges before him, adequacy of his home state’s representation n the higher judiciary and the need to provide representation for Dalits and other backward classes.
Justice Joseph was the author of the 2015 High Court judgment which annulled the Modi government’s decision to dismiss Uttarakhand’s Congress ministry and impose President’s rule in the state. It was a source of embarrassment to the Centre which was forced to reinstate the state government.
Despite the Centre’s denial, critics viewed the bid to block Justice Joseph’s elevation as a vindictive act.
For reasons that are not entirely clear, the collegium took several months to communicate to the government reiteration of its recommendation formally and forcefully. The delay led to suspicion that the collegium may be re-thinking on the issue. That did not happen. But the delay enabled the government to lower Justice Joseph’s seniority.
Modi had started his term setting a bad precedent by appointing P Sathasivam, a former CJI, as Governor of Kerala. Before returning to his Tamil Nadu village on retirement, Sathasivam had made it known that he was ready to take up any position befitting his stature.
There were insinuations that his appointment as Governor was reward for a judgment he had delivered as the CJI in 2013 quashing a first information report filed by the Central Bureau of Investigation against BJP President Amit Shah in an alleged fake encounter of the time when he was a minister in Modi’s Gujarat government.
Sathasivam denied allegations of wrong-doing. He pointed out that he did not give Amit Shah a clean chit. While quashing the CBI’s second FIR, he had allowed it to file an additional charge-sheet. It was he who had transferred another encounter case against Shah from Gujarat to Maharashtra.
It may be unfair to Sathasuvan to draw a link between his judgment in the case involving Shah and his appointment as Governor. But Modi’s offer of governorship to him and erection of hurdles on Joseph’s path are liable to be read as messages about possible rewards and punishments.
The collegium recently dropped its recommendation for the appointment of three advocates as judges, two at Allahabad High Court and one at the Chhattisgarh High Court, after the Centre returned the files twice drawing attention to certain complaints about the individuals concerned. It acknowledged that it was revising the earlier decision in the light of fresh inputs. Clearly the collegium system is not the virtuous thing it is supposed to be. -- Gulf Today, Sharjah, August 7, 2018.
Gulf Today
The Narendra Modi government ended its seven-month-long standoff with the Judiciary over the appointment of Uttarakhand High Court Chief Justice KM Joseph as a judge of the Supreme Court last week, paving the way for his elevation.
While rejoicing over the resolution of the issue, there is need to evaluate the results of the pulls and pressures that preceded it and the lessons they hold. Also, some systemic issues have come up and they need to be addressed.
The Constitution only requires the Executive to consult the Chief Justice of India in the appointment of judges. But the Supreme Court, exercising its exclusive right to interpret the Constitution, shifted primacy from the Executive to the Judiciary. While doing so, in a concession to democratic practice, it established a body, styled as Collegium, comprising the Chief Justice and a specified number of senior most judges, to decide on appointment, promotion and transfer of judges.
Successive governments meekly accepted the incestuous system created in the process. The Modi government enacted a law to set up a National Judicial Appointments Commission, in which both the Executive and the Judiciary are represented, to pick judges. The Supreme Court struck it down.
In December 2015 the court asked the Centre to draft a new memorandum of procedure (MoP) for appointment of judges in the light of its decisions. Two and a half years later a draft acceptable to both the court and the government has still not emerged.
The government’s displeasure over the court’s scuttling of the NJAC found expression in heavy delay in clearance of names recommended by the collegium. When the collegium proposed Justice KM Joseph’s elevation, the government returned the recommendation for reconsideration.
The rules permit the government to seek reconsideration of a recommendation. If, after reconsideration, the collegium reiterates the recommendation, the government has to accept it.
The government could not cite anything in Justice Joseph’s record that renders him unfit for elevation. Its objections were based on extraneous considerations like availability of others who became judges before him, adequacy of his home state’s representation n the higher judiciary and the need to provide representation for Dalits and other backward classes.
Justice Joseph was the author of the 2015 High Court judgment which annulled the Modi government’s decision to dismiss Uttarakhand’s Congress ministry and impose President’s rule in the state. It was a source of embarrassment to the Centre which was forced to reinstate the state government.
Despite the Centre’s denial, critics viewed the bid to block Justice Joseph’s elevation as a vindictive act.
For reasons that are not entirely clear, the collegium took several months to communicate to the government reiteration of its recommendation formally and forcefully. The delay led to suspicion that the collegium may be re-thinking on the issue. That did not happen. But the delay enabled the government to lower Justice Joseph’s seniority.
Modi had started his term setting a bad precedent by appointing P Sathasivam, a former CJI, as Governor of Kerala. Before returning to his Tamil Nadu village on retirement, Sathasivam had made it known that he was ready to take up any position befitting his stature.
There were insinuations that his appointment as Governor was reward for a judgment he had delivered as the CJI in 2013 quashing a first information report filed by the Central Bureau of Investigation against BJP President Amit Shah in an alleged fake encounter of the time when he was a minister in Modi’s Gujarat government.
Sathasivam denied allegations of wrong-doing. He pointed out that he did not give Amit Shah a clean chit. While quashing the CBI’s second FIR, he had allowed it to file an additional charge-sheet. It was he who had transferred another encounter case against Shah from Gujarat to Maharashtra.
It may be unfair to Sathasuvan to draw a link between his judgment in the case involving Shah and his appointment as Governor. But Modi’s offer of governorship to him and erection of hurdles on Joseph’s path are liable to be read as messages about possible rewards and punishments.
The collegium recently dropped its recommendation for the appointment of three advocates as judges, two at Allahabad High Court and one at the Chhattisgarh High Court, after the Centre returned the files twice drawing attention to certain complaints about the individuals concerned. It acknowledged that it was revising the earlier decision in the light of fresh inputs. Clearly the collegium system is not the virtuous thing it is supposed to be. -- Gulf Today, Sharjah, August 7, 2018.
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