'Returning recommendation is wholly unjustified'

The Supreme Court and the executive are on a confrontation path. Former Supreme Court judge Justice Gopala Gowda spoke to Ashish Tripathi of DH on why the tussle should be immediately resolved.

The elevation of Uttarakhand Chief Justice K M Joseph to Supreme Court has now hit a roadblock with the Centre invoking the principle of seniority and regional representation. How do you see the present tussle between the executive and judiciary?

This is not a healthy trend and development. It should not have happened, particularly in a country governed by parliamentary democracy where the judiciary has to play an important and effective role to oversee the functioning of the executive and legislatures. This stance of the Centre for seeking reconsideration of the name of Justice Joseph is contrary to precedents and well-established legal principles in the nine-judge bench decisions in 1993 and 1998. There are so many instances to indicate that seniority and regional representation were never considered either for appointing a chief justice of a high court and judges of the Supreme Court.

The returning of recommendation is wholly unjustified. It cannot be accepted by right-thinking people. Having the President's approval was not required at this stage. The President's approval is required at the time of issuing a warrant of appointment.

Adequate representation of federal courts to the apex court has never been the criterion followed for the last 68 years from the time of establishment of the apex court. In the case of Gopal Subramanium, the then Chief Justice of India (CJI) R M Lodha had objected to segregation of names recommended by the Collegium. Justice Joseph has been the chief justice of a high court for more than three years. Justice Ruma Pal's seniority was 79 when she was elevated to the apex court. In recent past, the government has approved names whose seniority were low. The states, namely Delhi, Kerala and Bombay, have seen more representation even earlier.

Do you think the judiciary should hold wider consultations with the government to avoid such kinds of development in future?

The power of the Collegium system is revived after both the Constitutional Amendment and the NJAC were struck down in 2015. The Collegium system exists, and as long as it is a law it is binding upon the central government under Article 141. Therefore, there is no need for the Collegium to have a wider consultation. It is open for the Collegium to have views of the brother and sister judges of the apex court. I am of the view that all the judges will speak in one voice to support the Collegium to reiterate the recommendation of Justice Joseph and proceed to elevate him to the apex court.

According to me, as per the law laid down in the Keshavanada Bharti case, judicial review is part of the basic structure of the Constitution. It still holds the field. Therefore, it is the duty of the Collegium and the central government to fill up vacant posts in Constitutional courts. If wider consultation is permitted, it amounts to nullifying the power of Collegium and precedents laid down by the Constitution Bench. It is the duty of the Collegium and central government to fill up vacant posts of judges for rendering justice to the people of the country. It is the constitutional mandate as it is enshrined in the Preamble.

What is the way out?

I appeal to all my brother and sister judges of the apex court to have one voice and support the Collegium to protect the dignity and power of the Supreme Court, that is to oversee the functioning of both the legislature and the executive, and further to protect Constitution and the rule of law and human rights of the citizens. The power and functioning of the constitutional court cannot be obstructed in a parliamentary democracy as they are required to exercise power with a view to ensuring citizen's human rights.

How do you view the four seniormost Supreme Court judges going public questioning the method of allocation of cases?

I am of the firm view that they are absolutely justified. I am in full agreement with their stand. According to them, everything is not in order and established procedure and practices are not followed while setting up Constitution Benches and allocating cases to other benches. No doubt, the CJI is the head of the Supreme Court for administrative purpose, though he is first among equals. He has got power to prepare the roster for effective disposal of cases. The CJI must have cordiality and comradeship with all judges for the effective functioning of Supreme Court. In the recent past, it has been notified that seniormost judges are not part of Constitution Benches. The unnecessary comments and criticism against judges who aired their view in public by vested interests are totally uncalled for.

What is your view on the CJI declaring himself as master of roster and how should he exercise his power?

The CJI is head of roster. But he must exercise his power keeping in view precedents. The CJI is required to follow the well-established principle and procedure. He is required to exercise his power fairly and reasonably. Every judge is competent and capable to decide all cases which are listed before respective benches. However, practice and procedure followed by the apex court hitherto in making seniormost as part of Constitution Bench to decide issues having far-reaching consequences must be respected too.

The Memorandum of Procedure (MoP) for the appointment of judges in the High Courts and the Supreme Court has not been finalised for the past two and half years. Do you believe it reflects poorly on the relationship between the executive and judiciary?

The Centre is unnecessarily causing a delay. Both the Centre and Collegium must have a dialogue and take a decision expeditiously keeping in view large number of pending vacancies. If MoP is not finalised by interaction and discussion, then Collegium should take a call in this regard keeping in view the decision of the apex court and proceed further.

The Opposition parties have brought an impeachment motion against the CJI, which was rejected by Rajya Sabha chairman. Do you think it has eroded people's faith in the institution?

There have been instances of impeachment move earlier in case of Justice V Ramaswami, Justice Soumitra Sen and Justice P D Dinakaran. Recently, the requisition presented against the CJI is signed by 64 MPs. Seeking his impeachment is the constitutional right of parliamentarians. The Rajya Sabha chairman while examining such requisition is required to see whether allegations made is either vexatious or frivolous and do not constitute a misdemeanour, and exercise his power to proceed further to constitute an inquiry to go into such allegations under provisions of Judges (Inquiry) Act, 1968.

Certainly, the power is vested with both the Lok Sabha Speaker and Rajya Sabha Chairman to reject requisition if same is not supported with material documents on such allegations. If it is unfounded, such requisition need not be considered. In order to ensure the credibility of constitutional institutions and good governance of the people, allegations in the requisitions are required to be probed to protect the interest of the nation and people in particular.