Executive Interference In Judiciary Flashcards
The appointment of Indu Malhotra as a judge of the Supreme Court should have been a reason for unmitigated celebration. She will become only the seventh woman in the history of independent India to be appointed as a judge of the country’s highest court. The momentous nature of this appointment cannot be overstated given the under-representation of women in all aspects of public life in India.
**Instead, this moment has now become about whether the SC has the will and conviction to forestall this government’s creeping and forceful assault on its powers.
The government’s actions come at a time when there is a sense of crisis surrounding the relationship between the executive and the judiciary. For over three months, the government sat on a composite recommendation to appoint Indu Malhotra and K M Joseph, and chose to act only after very public expressions of discomfort by senior SC judges.
The rather weak reasons from the government also raise ominous concerns regarding governmental attack on the independence of the judiciary. It appears that government is trying to make Justice Joseph pay the price for the judgment striking down president’s rule in Uttarakhand while sending a message to all judges across the country, that judges who rule against the government in important matters will face consequences.
The government’s response points to the urgent need to set up transparent norms for judicial appointments. Till these procedures remain opaque, judicial appointments will always be vulnerable to attack, and the independence of the judiciary will be under threat from within and without.
The history of the judiciary is replete with examples of instances where the independence of the judiciary has been protected by the court and a succession of Chief Justices of India against such interference by the government. Very often wiser counsel prevailed, and the executive interference with the independence of the judiciary was repelled.
Exceptions include the emergency period which was a legacy of these interventions, and should caution us about the dangers of executive interference in judicial appointments.
This continuing threat was nipped finally by the Second Judges case by the creation of collegium system.
** The manner and context in which the collegium’s recommendation has been treated by the executive raises a real and immediate threat for the independence of the judiciary.
While the Court is not infallible, its authority and that of the Constitution will survive only if it remains independent.
For that, nothing less than an immediate and categorical reiteration of the recommendation is necessary and holding off on the swearing-in of Supreme Court Justice-designate Indu Malhotra is required.
It has been a few decades since the Supreme Court faced such a powerful government. It is time for the court to confront the ghosts of decisions past and lay to rest the burden of having buckled the last time around. ***
The NDA government has segregated and returned for reconsideration of the Supreme Court Collegium the proposed appointment of Justice KM Joseph as judge in the apex court.
*** In a letter sent to the Chief Justice of India today, the law ministry cited Justice Joseph’s seniority ranking among all high court judges and the representation given to his parent high court of Kerala.
“In the All India High Court Judges’ seniority list, Justice Joseph is placed at serial number 42. There are presently 11 chief justices of various high courts who are senior to him,” the law ministry wrote.
10 of the 24 high courts in India are currently not represented in the Supreme Court, the centre said, adding that the Kerala High Court has “adequate” representation in the Supreme Court and among chief justices of high courts. **
The government has singled out Justice Joseph from the two recommendations made by the collegium in January after sitting on them for more than three months — the segregation is unusual, as was the delay. Neither can be explained away by the selective invoking of the so-called seniority or diversity norms in appointments to the higher judiciary.
The ball — the opportunity to defend his institution — is now in CJI Misra’s court. At the very least, the government’s moves, given the questions they raise, need to be considered institutionally, in a meeting of the collegium. So far, CJI Misra appears to have discounted the serious concerns raised by his brother judges in the recent past regarding the executive’s bid to control or dominate the judiciary.
The court has a proud legacy of protecting its own dignity and independence. CJI Misra must live up to it. Not just his own legacy, the integrity of the institution he heads is at stake.
** The five-judge Collegium led by Chief Justice of India Dipak Misra is scheduled to meet on May 11 to decide on the government’s objections to the elevation of Uttarakhand High Court Chief Justice K.M. Joseph to the Supreme Court.
The Collegium, which met on May 2, had parted on an inconclusive note.
The Collegium is expected to finalise its response to the government on Justice Joseph and would also discuss the names of judges from Calcutta, Rajasthan, and Telangana and Andhra Pradesh High Courts for elevation as judges of the Supreme Court, in view of the “concept of fair representation”.**
