Unnecessarily provocative stand by the Executive against the Judiciary

The delay in the finalization of Memorandum of Procedure (M.O.P.) which the Supreme Court inexplicably asked Government of India to frame is caught up with the unsustainable objections by the Government. The latest in objections for finalizing M.O.P. is that the Government wants its decision to be final about a person being considered unfit for appointment as a Judge on the ground “of National Security”. The presumptuousness of the Government to be the sole authority of the decision in such a matter is against the settled law since the Second Judges case, and which was not even challenged by Union of India in the latest decision of 2015.

In the 2nd Judges case, the Court held, “that even though no appointment can be made unless it is in conformity with the opinion of the Chief Justice of India, yet in an exceptional cases, where the facts justify, a recommendee of the Chief Justice of India, if considered unsuitable on the basis of positive material available on record and placed before the Chief Justice of India, may not be appointed”,  except in the situation indicated later which was spelled out as under:

“Non-appointment of anyone recommended, on the ground of unsuitability, must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.” (emphasis supplied)

The tongue in cheek argument of the Government is sought to be supported by suggesting that the Supreme Court has only said, “that as a matter of healthy convention”, the Chief Justices recommendee should be appointed, but has nowhere said that he must be appointed and therefore, theGovernment can ignore the Chief Justice’s recommendation. This is a perverse view.The mild gentlemanly language used by Supreme Court in no way weakens the finality of Chief Justice’s recommendation. This unacceptable excuse of “Security Consideration” even after it being rejected by a collegium of Chief Justice of India and his colleagues, shows the patently obnoxious technique to lower the dignity of the highest judiciary. Is it not presumptuous not to accept the views of Supreme Court collegium when even a Sessions Judge can reject the case against a person brought under National Security Act and the court finds it untenable? What then permits the temporary incumbents of executive power to arrogate to themselves the wisdom and competence to question the decision when five of the senior most Judges in the collegium hold differently?

Such an argument of National Security was caustically rejected by the U.S. Supreme Court in 1972 thus: “we cannot accept the Government’s argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society.

There is no reason to believe that Judges will be insensitive to or uncomprehending of the issues involved in domestic security cases.

If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a Court, one may question whether there is probable cause for surveillance.”

Another uncalled suggestion by the Government is that while recommending a name for Supreme Court, the seniority of all India seniority should be the consideration and reasons should be given if otherwise. I feel that inter-se seniority has to give way to various considerations of inter-state reality of our federal structure, like necessity of different states being represented in the Supreme Court. All the appointments in the High Courts are fortuitous and many a time a senior competent lawyer in one court may not get a chance to be elevated in his own High Court, while some one even much junior to him in another High Court may be appointed earlier. But I agree that no junior Judge of a High Court be elevated to the Supreme Court to the exclusion of Chief Justice of the same High Court. I know there may be more competent Judges than the Chief Justice in the same Court but still with a view to keep harmony and mutual goodwill in the High Court, and to prevent mischief by the Executive there should be no ignoring the Chief Justice of the same High Court for appointment to the Supreme Court. I say this because there must be mutual trust and cordiality in the same High Court which can only be maintained if everyone knows that no amount of closeness to the Executive can be of any avail. Let us be frank – Judges are as much prone to human frailty as ordinary citizens.

Asking the Supreme Court collegium to separately give their views of each member in writing to the Government is insulting and provocative. Government is only entitled to know the views of the majority – it cannot act as a supervisor.

One of the most essential requirements not emphasized either by the collegiums or the government is the necessity to inform the Bar Associations the names which are under consideration and to invite their views. The present practice of shrouding the names (though in practice everyone knows it) unnecessarily causes a suspicion of motive.

Another totally unacceptable suggestion by the government is that while recommending an additional Judge for a permanent vacancy, a detailed brochure containing the Judgments delivered or reported in law journals should be furnished to the Government. This suggestion is so terribly ridiculous as to be thrown out straightaway. The correct practice invariably followed is that unless there is a case of misconduct found by the judiciary itself, and not the Executive, the Judge should be made permanent automatically.

Already this delay has increased the vacancies to over 460. In Allahabad alone, 100 names are being withheld by the Executive – an intolerable situation.

Can one hope that with the change in Law Ministry now being headed by a Senior Lawyer who understands the delicacy of the present situation, there will be a welcome change and appreciation of the views of the highest judiciary?

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