“THE shift in matter of appointment of judges from the system that included the Executive to an all-judges one (collegium) had been triggered by the government putting curbs but with the recent SC judgment striking down the idea of return of the Executive via the National Judicial Appointments Commission (NJAC), the process has come a full circle leading to judiciary now putting the curbs,” said Maharashtra Advocate General Shrihari Ane on Saturday.
“In doing so, the SC did exactly what it had blamed the government for,” Ane said. He was speaking at a lecture organised on NJAC by the High Court Bar Association.
“it was the Executive that appointed judges, that is, President on advice of the Council of Ministers. For the first time, then President appointed A N Ray as Chief Justice (CJ) by superseding three judges. It was legal as he was appointed by the President. Even today, the Constitution says the same thing. But it was then resented by the Bar Association as well as many eminent people, including Nani Palkhiwala, who termed it as judiciary made to measure. Four years later, the Janata Party government restored the system of appointing the seniormost judge as CJ. But earlier in 1973, the Keshavanand Bharti case came before SC. In this case, Palkhiwala first brought the basic structure into legal play. He said there is something inherent to the Indian Constitution that you cannot change. Any such change is not permissible. SC accepted it by majority of seven judges against six,” he said.
“The basic structure principle came into play next time when then Prime Minister Indira Gandhi brought in the 39th amendment that said appointments of the President, Vice-President and Prime Minister are beyond challenge. It was challenged before SC under the provision of judicial review. SC quashed the amendment citing judicial review as the basic structure of the Constitution. But Gandhi decided to go ahead to rule despite her election being set aside and then brought Emergency by the 42nd amendment that curtailed fundamental rights. It was again set aside in the Minerva Mills case using the same basic structure principles,” Ane pointed out. “So far so good, but SC started erring after that,” he said.
Ane traced it to transfer of judges by the government. “In the first judges’ transfers case, SC rightly held that the government had the right to appoint judges. But then, Justice P N Bhagwati made a small observation that it is unwise to entrust power in any significant or sensitive area to a single individual however high. This was used by SC in the second judges’ transfers case, where they overruled the judgment in the first judges’ transfers case. And ruled that appointment or transfer of judges was a matter of judicial independence. SC took it upon itself to appoint judges, extending the same to HC throwing the Executive out. This was an interference in working of Articles 124 and 217. It is here that basic structure principle changed its path,” Ane observed. Saying we need to have judges from all levels of society to be able to grasp human reactions to judgment, apart from knowledge of law, Ane said judges’ appointment need to factor in understanding of human reaction as well. “it is incorrect to presume appointment of judges by President on government’s advice is fraught with possibilities of nepotism and partisanship…”