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The Supreme Court must focus on protecting judiciary’s independence than running the BCCI.

After months of dilly dallying and uncertainty, the Narendra Modi government finally decided to appoint Uttarakhand high court chief justice K.M. Joseph to the Supreme Court – nearly seven months after his name was first recommended by the Supreme Court collegium.

The Centre also rejected two more names – both advocates – recommended by the SC collegium for appointment as judges of the Jammu and Kashmir high court while appointing two others – one woman lawyer (a first for the high court in the militancy hit state) and a judicial officer.

Should those who follow the Indian legal system and the pulls and pressures that have come to symptomise the not-so-harmonious relationship between the judiciary and the executive in the last few years feel vindicated that Joseph’s appointment has come through? Or, should there be questions about the dozens of cases the government has rejected arbitrarily – many of them in complete violation of settled law and the existing memorandum of procedure (MoP).

Also read: Modi govt at it again, now rejects 2 names recommended for judges to J&K high court

Should we hail the current government for making the “highest-ever” appointments of high court judges in 2016 (126), a number that could be surpassed this year? Or, should somebody also underline the fact that the Modi government may also have set the dubious record of maximum number of rejections?

But, any question involving the relationship between the judiciary and the executive cannot be answered in a simple yes or no. The answers, here, will have to be provided by the Supreme Court.

The government can’t be absolved of the blame for trying to browbeat the judiciary either by rejecting names, mostly on frivolous grounds, recommended by the collegium, or sitting on the names for long periods without offering any reason, or sending them back for reconsideration.

The Supreme Court collegium under the current Chief Justice of India Dipak Misra doesn’t exactly come out with its honour and prestige intact. Especially after the abject manner of surrender in several cases that the government wanted reconsidered or modified.

The rot, to put things in perspective, started much before. An earlier collegium had unilaterally withdrawn the recommendation of a preceding collegium to transfer Gujarat high court judge M.R. Shah – who was appointed chief justice of Patna high court Friday – and Delhi high court judge Valmiki Mehta. This happened after the Modi government sat on the transfer recommendations indefinitely without offering any explanation.

Despite making loud noises over transparency, the government and the collegium continue to be as opaque, if not more, as their predecessors on issues concerning appointments and rejections of names. The current collegium is actually acting like an extension of the government.

Consider this: it was an open secret that the Modi government didn’t want Calcutta high court judge Aniruddha Bose as chief justice of Delhi high court. After sitting on the file for almost six months, the government rejected his name and said he didn’t have the experience to handle such a big high court. The same government, however, had no issues in appointing Bombay high court judge V.K. Tahilramani as chief justice of Madras high court.

On earlier occasions too, Centre has promoted newly appointed chief justices to bigger high courts, which I have written about in one of my recent articles.

But, the collegium succumbed to government pressure, once again, and changed its recommendation for Bose. He has now been appointed chief justice of Jharkhand high court. It is interesting to note that while Delhi high court has a sanctioned strength of 60 – 45 permanent and 15 additional judges – Madras high court has a sanctioned strength of 75.

Also read: Modi govt claims ‘record’ judicial appointments. Numbers tell another story

What are the options in front of the collegium if the government sits on names?

Many legal experts feel that by indefinitely sitting on names, particularly names like Karnataka judicial officer P. Krishna Bhat, the government is committing contempt of court and running against settled procedure. Bhat’s name was recommended and later reiterated for appointment to the Karnataka high court nearly two years ago.

Last month, activist-lawyer Prashant Bhushan even filed a petition in the Supreme Court on this important issue on behalf of the Centre for Public Interest Litigation. The plea says that by returning the names on questionable grounds, the Centre is stonewalling appointments for “oblique and vested interests”, something that is tantamount to “interference in the due process of law and the independence and integrity of the judiciary”.

The petition is yet to come up for hearing.

The Supreme Court, if it wants, can even take up the matter of the government not clearing names on the judicial side and let its view be known in clear terms. But, that decision has to be taken by CJI Misra, who is the master of the roster.

Also read: Indian judiciary doesn’t need to fear the government; it needs to be afraid of itself

Judicial independence

With senior Supreme Court judges planning to raise the issue of Joseph’s seniority with CJI Misra, the latter has a chance to uphold the independence of the judiciary.

It is incumbent upon the Supreme Court, especially those in the collegium, to stand up to the government on issues that concern the independence and integrity of the institution. If doing so requires it to issue strict orders on the judicial side, so be it. Protecting the independence of judiciary is any day more important than running the BCCI or deciding whether people should stand up when national anthem is played in cinema halls. Citizens understand that. But, do our hon’ble judges in the collegium see it that way too?

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