"Operation Successful; Patient Dead": A Troubling New Clause Allows the Government to Reject a Judge’s Appointment on the Grounds of National Security

17 March 2017
According to a report in the Times of India, the Supreme Court collegium, led by Chief Justice JS Khehar, has agreed to a clause that would allow the government to block the appointment of a judge on the grounds of national security.
Anindito Mukherjee/REUTERS
According to a report in the Times of India, the Supreme Court collegium, led by Chief Justice JS Khehar, has agreed to a clause that would allow the government to block the appointment of a judge on the grounds of national security.
Anindito Mukherjee/REUTERS

On 16 October 2015, Justice JS Khehar, the current Chief Justice of India, led a five-member bench at the Supreme Court that struck down the ninety-ninth constitutional amendment passed in both houses of the parliament and ratified by 16 state legislatures, on the grounds that it infringed upon the independence of the judiciary. The ninety-ninth constitutional amendment paved the way for the National Judicial Appointments Commission, or the NJAC. The commission was intended to replace the collegium system of appointing judges to the higher judiciary, under which the chief justice of India and their four senior-most colleagues select judges to the high courts and Supreme Court of India. In his leading opinion in the four-judge majority judgement, Khehar was scathingly critical of the NJAC—which would have included members of the government. “The political-executive, as far as possible, should not have a role in the ultimate/final selection and appointment of Judges to the higher judiciary,” he noted, “Reciprocity, and feelings of pay back to the political-executive would be disastrous to ‘independence of the judiciary.’”

Khehar did however tell the government to “help us improve and better the system.” In a subsequent hearing in December 2015, he directed the governmentto come up with a new Memorandum of Procedure (MoP). Since then, the government and the collegium have been butting heads over the formulation of a new MoP for the appointment of judges. Among the issues that marked this stalemate was the government’s insistence on a clause that would block the appointment of a judge on the grounds of “national security.” In a story published on 15 March 2017, the Times of India reported that this conflict has been resolved. According to the report, the collegium, led by Khehar himself, conceded to the government’s demand, ostensibly giving it a “veto power to reject a name recommended by the collegium for appointment as judge.”

This is an unprecedented move with extraordinary consequences. The finalisation of the MoP will certainly fill vacancies in India’s high courts—which are functioning at less than 60 percent of their sanctioned strength—and help reduce the backlog of cases across the country. But it has hardly brought any cheer to the legal fraternity. Kamini Jaiswal, a senior lawyer practising in the Supreme Court, told me that this resolution is an instance of, “Operation successful; patient dead.”

“This clause is a complete departure from the idea of the primacy of the judiciary,” AP Shah, the former chief justice of the Delhi High Court, told me. “It is giving the executive a power that was not envisaged in the Judges Cases or even the NJAC Act.” It is also a complete departure from the stand Khehar had taken on the issue, so clearly articulated in his opinion: “There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary.”

The Supreme Court’s judgment in the case regarding the NJAC set the government and the judiciary on a collision course. In a Facebook post that he wrote soon after the ruling, Finance Minister Arun Jaitley deemed the logic informing the court’s decision “erroneous,” and said that the Indian democracy could not be a “tyranny of the unelected.” In April 2016, TS Thakur, who was then the chief justice of India, broke down several times while he was speaking at a public event that Prime Minister Narendra Modi was attending as well. Thakur blamed the government for stalling the appointment of judges to higher courts and said that it should increase the number of judges from 21,000 to 40,000. On 25 November, during a function that was held to commemorate Constitution Day—which is observed on 26 November—Law Minister Ravi Shankar Prasad accused the Supreme Court of failing the country during the Emergency. On the same day, Attorney General Mukul Rohtagi, speaking in the presence of both Thakur and Khehar, said that “all including judiciary must recognise there is ‘lakshman rekha’ and be ready for introspection.” Khehar responded by saying that “the judiciary is mandated to shield all persons, citizens and non-citizens alike, against discrimination and abuse of state power.”

Atul Dev is a staff writer at The Caravan. He can be reached at atul.caravan@gmail.com.

Keywords: Supreme Court National security Justice TS Thakur Chief Justice of India Justice JS Khehar Judicial Appointments NJAC
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