The wrangling over the Memorandum of Procedure (MoP) for appointment of judges seems to be far from over because the Chief Justice of India (CJI) Dipak Misra quashed a two-judge initiative of the apex court to find out why the document was not finalised. A PIL filed by a Delhi lawyer, R.P. Luthra questioned how the apex court collegium could appoint high court and supreme court judges when the MoP was not finalised.
What makes Luthra’s PIL interesting was that the petitioner, R P Luthra was knocked out from being considered for elevation as a Supreme Court judge. He protested that the bench should not have cast aspersions on his ‘lack of’ competence for elevation as an apex court Judge. “Your grievance is that you were not considered for appointment as a Supreme Court judge. You don’t need to raise your voice for this. You have come here to plead before the court. I personally wonder whether with this demeanour, can it be considered,” Justice Amitava Roy who was part of the three-judge bench headed by the CJI said.
Luthra again argued that the court was condemning him by questioning his ability. The bench, however, refused to listen to him and dismissed his plea. But the bench did not impose a fine on him for allegedly disguising his personal pique of not being considered for elevation as an apex court judge as a PIL.
In its October 27 order, the Supreme Court said that even though there was no time limit fixed to finalise the MOP, the issue could not linger indefinitely and “there should be no further delay in finalisation of the MOP in the larger public interest”. There are differences of opinion over the clauses in the MOP for appointments in the higher judiciary between the Supreme Court collegium and the government.
On the other hand, former CJI J.S. Khehar imposed a fine of Rs 10 lakh on controversial godman Swami On and Delhi businessman Mukesh Jain for filing a PIL questioning the appointment of Justice Dipak Misra as the next CJI when the Constitution allowed only the President of India to choose the next CJI. Misra’s name was allegedly mentioned in the suicide note of former Arunachal Pradesh chief minister Kalikho Pul.
Justice Khehar called the PIL a “publicity interest litigation” while imposing the fine which was to be paid into the prime minister’s relief fund. But other things being equal, it seems strange why advocate Luthra got off without a fine although he consumed an enormous amount of judicial time. By accepting the argument that judicial appointments to the high courts and supreme court could not take place before finalising the MoP, the entire backlog of cases would have mounted with further delay in filling in the vacancies in the 24 high courts and the apex court. There have been repeated hiccups in finalising the MoP with the Narendra Modi government inserting a national security clause which would mean that those who aspire to become high court judges could have been knocked out if the government did not approve their names. In 2014, 16 of the state legislatures had approved the NJAC Act and the 99th Constitutional amendment which got the President’s assent on December 31, 2014.
The collegium system of appointing judges is a creation of the judiciary because it finds no mention in the Constitution and former Supreme Court judge Markandey Katju has published several instances of allegedly corrupt lawyers being appointed judges by the collegium as a political quid pro quo.
The only respite from the allegation of the judiciary being a cabal within a state was that CJI Dipak Misra has now uploaded the reasons for judges being appointed or not being considered on the official website of the Supreme Court. By striking down the NJAC Act and the 99th Constitutional amendment, the Narendra Modi government saw the judiciary as ignoring the will of the people.
“National security” is a vague term which could have sinister implications for the judiciary because those lawyers or judges who opposed the RSS-BJP ideology of the Narendra Modi government could be deemed to be anti-national.
But to return to the MoP, the insertion of the “national security” clause made a mockery of the apex court judgment quashing the NJAC Act, 2014. This has given the Narendra Modi government the power to reject any aspiring judge on the ground that he is a danger to national security although as a lawyer or a judge, he has upheld the liberty to dissent which would include Naxalites, Maoists and other extremist groups. The most recent casualty has been Justice Jayant Patel who directed a CBI probe into the Ishrat Jahan fake encounter case when he was the acting chief justice of the Gujarat high court and Narendra Modi was the chief minister of Gujarat. Both the Karnataka and Gujarat Bar Associations announced a boycott of the courts for a day. Former solicitor general, Gopal Subramanium was not appointed a judge of the Supreme Court in June 2014 despite the collegium having recommended his name.
So also, the transfer of Justice Rajiv Shakdher from the Delhi high court to the Madras high court and that of Justice Abhay Mahadeo Thipsay from the Bombay high court to the Allahabad high court made it clear that the collegium had surrendered to the executive, whatever the Supreme Court might have held in its First, Second, Third and Fourth Judges cases. Narendra Modi may not be very different from Indira Gandhi in the appointment or supercession of judges.
The author holds a Ph.D in law and is a-journalist-cum-lawyer of the Bombay High Court.