The President of India has announced the appointment of nine judges to the Supreme Court by accepting the recommendation of the college. There are now three female judges. One of them is a potential Chief Justice for India. The list also reflects a better presentation on several points.
But instead of the ones that are now banked, there is more talk of the names that have been left out by the college. According to the principles of the 2nd Judge Procedure (1993) and 3rd Judge Procedure (1998), seniority, earnings and diversity are some of the relevant parameters in selecting the “best” candidates for the higher judiciary. The expulsion of Judge Akil Kureshi, chairman of the Tripura Supreme Court, from the list of the college has caused great consternation in legal circles. He is being followed by others, which is daunting.
In 2010, Judge Kureshi had to examine a plea by the CBI for pre-trial detention against the current Minister of the Interior, Amit Shah. Despite the loud arguments from Shah’s lawyer, Kureshi ordered the CBI to have custody of Shah for a few days.
There is also some disappointment with the expulsion of Chief Justice S. Muralidhar from the Orissa Supreme Court. As a judge of the Delhi Supreme Court, on February 26, 2020, he ordered the Delhi Police to rush to rule on the registration of the first informational report against the BJP leaders, including a minister, for alleged hate speech contributing to local violence in Delhi have contributed. When the court was told that the legal action would be taken at an appropriate stage, it asked, “What is the appropriate stage? After the city burns down? ”This question is a testament to the judge’s commitment to the rule of law and the oath he took while decorating the bank. Judge Muralidhar was immediately transferred to another high court.
The story of the Supreme Court tells us about the resentment of the executive branch when it comes to meddling in judicial inquiries. In exercising constitutional duty, judges sometimes have to make tough decisions. The renowned British lawyer David Pannick put it aptly: “Judges are not an easy job. They keep doing what the rest of us want to avoid: making decisions. ”Judge HR Khanna was denied appointment as Supreme Justice of India because of his famous disagreement in the ADM Jabalpur case (1976), where he said that fundamental rights should be assured even during the state of emergency are not negotiable. In 1973, Judge AN Ray was appointed Chief Justice of India, replacing Judges JM Shelat, KS Hegde and AN Grover, who in the same year held the Kesavananda Bharati case that the basic structure of the Constitution was unshakable and Parliament I can not change it. All three judges resigned from the Supreme Court because they maintained their dignity and self-respect.
Some people think that the controversy over the current judge election is “unjustified”. PDT Achary, former general secretary of Lok Sabha, says this “unnecessary controversy” is based on “the non-existent ‘Rule of Seniority'”. This view is wrong. First, judicial appointment is too serious a matter to be left to the judges or their college alone. Therefore, a national debate about such an appointment cannot be dismissed out of hand. Second, seniority, while not the only criterion, is one of the relevant considerations. In order to prefer a junior to a senior, there should be “outstanding merits” under Supreme Court law. While seniority is objective, tangible, and even a constant, “merit,” especially the judge, is a relative, subjective, and sometimes disguised notion. The argument that Judge Kureshi or Judge Muralidhar were less deserving would be utterly unconvincing.
Judge Krishna Iyer famously described the college as a “curious creation without constitutional support”. Regarding the judicial selection, he said that “no principle is set, no investigation is being carried out, and some sort of anarchy prevails.” It is not anarchy, but the interplay of various considerations that ultimately determines the recognition of names as judges at the highest court. The current confirmation also came after a long dead end of around two years.
Chief Justice NV Ramana has been commended for his pragmatic approach, which ended the uncertainty that led to many vacancies in the country’s Supreme Court. But at the end of the day, it’s important to see that no one is neglected or ignored just for keeping their constitutional oath. In the judging profession, principles are important in addition to pragmatism. The rule of law must also become a must in the area of judicial selection.
It is an Indian tragedy that one of the most important processes in democracy – the selection of judges for the constitutional courts – is carried out by a body called the Collegium, which lacks democratic or constitutional legitimacy. However, the rulings of the Supreme Court on appointments have repeatedly confirmed the unelected body of the Collegium, which is not representative or participatory in a democratic sense.
The nation’s quest for an independent commission for the appointment of judges is practically rejected by the executive and judiciary. It is a challenge that the legal community must face in addressing this issue, despite the monstrous indolence of our political leaders.
Attorney, Supreme Court
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