Committed judiciary has been a harsh Indian reality. Justice Khanna was denied elevation as the Chief Justice of India (CJI) because of his courage to tell that the fundamental rights are inalienable even during the Emergency. However, the phenomenon of “committed judiciary” is not one that occurred only during the Emergency (June 25, 1975 - March 21, 1977), as commonly understood. Even earlier, in 1973, three seniormost judges of the Supreme Court had to resign when they were superseded by a junior judge, who was appointed as CJI. History repeated itself in a different fashion in Justice K M Joseph’s episode. A strong central government made its aggrandising impositions on a weak and divided judiciary. Sometimes, political intrusion into the judicial affairs has been an insurmountable Indian tragedy.
The Centre has, no doubt, exposed itself in not having a valid justification in turning down the Collegium’s recommendation to elevate Justice Joseph. Unlike the case of elevation of judges of the high court as the chief justice of a high court, where seniority matters predominantly, for the elevation of a chief justice of a high court to the Supreme Court, seniority is not the sole criteria. This proposition has been unequivocally laid down by a nine-judge bench of the Supreme Court in the Presidential Reference Case [(1998) 7 Supreme Court Cases 739]. The apex court said what matters for elevation to the Supreme Court is merit and not seniority. The primacy of Collegium and the finality of its unanimous decision in the matter of appointment are also legal principles settled by the Supreme Court by way of the 2nd Judges Case (1993), the 3rd Judges case (1998) and the relatively recent verdict in the National Judicial Appointment Commission Case (2015).
Justice Joseph is an erudite judge who is known for his intellectual ability and honesty. On April 21, 2016, he, along with Justice V K Bist, quashed the Centre’s order for imposing President’s Rule in Uttarakhand which was not preceded by a floor test in the Assembly. The judgement could not have been otherwise, in view of the binding precedent in Bommai (AIR 1994 SC 1918) in which the Supreme Court has mandated floor test to ascertain the majority. Though the Supreme Court upheld the verdict, it resorted to a conciliatory approach in its order of May 6, 2016. Ultimately, it persuaded the Centre to “agree for a floor test”, which reinstated the then chief minister Harish Rawat. The judgement of the high court has been more judicious. But merit often costs one so dearly.
It is quite true that the moral authority of the Congress to question the Centre is doubtful since it lacked democratic legitimacy in ensuring judicial independence in the past. That, however, does not dilute the content of the objection. It is equally true that the present system of selection of judges by the Collegium, often based on a “barter system”, as revealed by justice Chelameswar, is terribly disgusting. Robert Stevens famously said: “Judges choosing judges is the antithesis of democracy”.
In the present scenario, “merit” is a notion that is so abstract and obscure. Even Justice Chelameswar recently bemoaned that elevation of judges to the top court is done based on impressions and not on evaluation. But the government and even the Supreme Court are bound by the nine-judge bench ruling, which remains as the “law of the land” by virtue of Article 141 of the Constitution, as long as there is no law that supersedes it.
The Centre’s stand, expressed through Law Minister Ravi Shankar Prasad, also defies the conventions. It is shown in a recent report that Justice Deepak Gupta in the Supreme Court is junior to more than 45 judges in the high courts across the country (Apurva Viswanath, The Print, February 15, 2018). The same report shows that two sitting judges of the Supreme Court from Karnataka, Justice Mohan M Shantanagoudar and Justice Abdul Nazeer are juniors to at least 39 sitting high court judges.
The argument that Justice Joseph’s elevation would result in over-representation for Kerala is fallacious. The only other judge from Kerala, Justice Kurian Joseph, is due to retire this November. Curiously, 2018 would witness scores of retirements as six judges would vacate office this year. Twelve vacancies are expected as against the sanctioned strength of 31 in the apex court. This would erase the putative anxiety of the Centre about the inadequacy of the regional or communal representation on the bench.
The process of appointments in Constitutional Court in India still awaits a comprehensive legislation that encompasses all its facets. The very fact that the government can delay any appointment, as there is no statutory prescription of a time limit for approving or disapproving, tells a sad commentary on the system. Justice Joseph’s name was “returned” by the Centre only after an unjustifiable, inordinate and nefarious delay. Refusal to fill up the judicial vacancies in the higher courts is nothing but an insult to the Constitution.
An independent judiciary is a constitutional imperative and a fair method for selection and elevation is its condition precedent. The Centre, that drained off the common man economically by way of demonetisation and excess tax, that repressed him socially by way of the apathy to the atrocities against the children, women and Dalits, has also snatched away his democratic rights by trying to destroy the constitutional institutions, and in the process, even the Supreme Court is not spared.
(The writer is a lawyer in the Supreme Court)
