The Politics of the Executive in Judicial Appointments

By Santosh Paul

“It is perfectly possible to pervert the Constitution, without changing its form, by merely changing the form of the administration and to make it inconsistent [with] and oppose to the spirit of the Constitution.“

Dr. B.R.Ambedkar

Two remarkable Judges delivered judgments, which were path breaking and having far reaching consequences for our constitutional democracy. Both paid the price for courage under the fire of the Executive.

One of the judges was transferred to the Madras High Court. The second judge is now being objected to by the government to be brought to the Supreme Court. Justice Rajeev Shakdher delivered the judgment in the ‘Priya Pillai’ (2015) case, which broke far more ground than the Supreme Court’s decision in Maneka Gandhi (1978). Ms. Pillai, a human rights activist’s right to travel abroad, an extension of right to life itself, it was held, could not be curtailed  by the government whose views howsoever diagonally opposed to hers.

Another judgment delivered by Justice KM Joseph, who in 2016, struck down the hastily imposed President’s Rule in Uttarakhand. Echoing the sentiment of Supreme Court’s SR Bommai (1994) judgment, Justice Joseph wrote:

“The Government when it takes action under Article 356, is expected to be completely non partisan but the centre had imposed President’s Rule contrary to the law laid down by the Apex Court.”

Unlike many judgments, which are delivered long after the event and reduced to mere pious sentiment, these two judgments came in with the requisite expedition to grant meaningful relief. Governments are never pleased with this. They would rather have the judgments come long after the fruits of political expediency are reaped.

The vice of President’s Rule in the States has a long history of abuse and debilitating democratic mandates. Even the great Ambedkar had a tough time  pacifying members of the Constituent Assembly about the dangers of President’s Rule abrogating democratic verdicts by promising “we ought to expect such articles will never be called into operation and that they remain a dead letter”.

But that was not to be. Its use against the Communist Government in Kerala in the year 1959 was undoubtedly questionable. Post Nehru, its use has been rampant with every Central Government of every political hue abusing this power to appease the State party apparatchiks. The Janata Party which came to power in 1977, contra all the lofty principles espoused, abused the system under the spurious argument that in view of the Lok Sabha result in 1977, the States governments run by Congress had lost their mandate. Under the BJP Central rule, Mayawati’s government was axed.

But Constitutional morality is not a virtue in politics. And those judges upholding it run a risk. The transfer of Justice Rajeev Shakhder and the Government’s refusal to accept the Collegium’s verdict of Justice KM Joseph are continuation of the naked politics of the executive and its nebulous role in the process of judicial appointments.

The fate of independent and meritorious judges being sacrificed for appeasing political constituencies is nothing new. It has a long history. Justice HR Khanna, Justice VS Malimath, Justice ML Pendse are just some of the names. The recent episode in the Bombay High Court is a serious cause for concern.

The emasculation of the judiciary’s independence is being witnessed in many a developing nation: Turkey (2016), Maldives (2018), Bangladesh (2018), and Pakistan where unbridled political interference commenced in 1959 and continues till date. Contemporary history has also demonstrated that with erosion of independence of the judiciary, the inevitable corollary is the destruction of democracy itself.

There was so much skepticism and doubt expressed when the Supreme Court delivered the NJAC verdict. With the passage of time, it can be seen how the governments are decisive in preventing independent judges being elevated to the Supreme Court. Today at stake are the elevations of two deserving candidates Justice KM Joseph and Senior Advocate Indu Malhotra.

This is the time for the Collegium to assert. It is now for the Collegium, which is adequately empowered under the 1993 SCAORA judgment and the 2015 NJAC verdict, to assert its designated and decisive role in the interest of the judiciary, its independence and for democracy itself. It is worth joining this issue as the stakes are very high. For after all, India is the most enduring experiment on constitutional democracy in post colonial history.

Santosh Paul is Advocate at the Supreme Court of India.