Heading the Constitution Bench, Justice J S Khehar pointed out that 13 Governors resigned within a short period of time after the NDA government came to power in May last year. “One wonders whether all these resignations were voluntary,” he said.
He said a large number of persons holding high positions in institutions of significance also resigned after the NDA government was sworn in.
“Some of them had just a few months before their tenure would expire, and some even less than a month. Those who left included bureaucrats from the all-India services occupying coveted positions at the highest level, directors/ chairmen of academic institutions of national acclaim, constitutional authorities, directors/ chairmen of national research institutions and the like,” he said.
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In the interview, Advani had said that forces that could crush democracy were now stronger than ever before, and the judiciary was more responsible than the other institutions for the functioning of democracy.
Terming Advani’s views as “dreadfully revealing”, the judge asserted that the Constitution does not envisage the “spoils system”, also known as the “patronage system”, wherein the party which wins an election gives government positions to its supporters, friends and relatives.
In an indictment of the BJP-led NDA government, Justice Khehar said the fact that many eminent personalities and senior bureaucrats resigned soon after the new dispensation came to power last year reflected the “spoils system”.
His views assume significance as Attorney General Mukul Rohatgi had attacked the collegium system over nepotism and argued that the only principle the collegium followed was “you scratch my back and I will scrath yours”.
Justice Khehar maintained that the instant narration is not aimed at vilification but appreciation of the ground reality, and he was mindful of the fact that the previous government had also acted in the same manner.
The judge said such a patronage system cannot work for judicial appointments. “For the judiciary, the best out of those available have to be chosen. Considerations cannot be varied, with a change in government. Demonstrably, that is exactly what has happened… in the matter of non-judicial appointments,” he said.
Recording his conclusion, Justice Khehar said it would be of utmost importance therefore, to shield judicial appointments from any political-executive interference to preserve the independence of the judiciary from the “spoils system”.
Justice Khehar held that preserving primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary would be a safe way to do so.