Threat to independence of judiciary: Opp on Nazeer’s appointment; BJP hits back

Justice (retired) Nazeer is the third judge from the five-judge bench that gave the Ayodhya ruling to receive a post-retirement appointment from the government. While former Chief Justice of India Ranjan Gogoi, who headed the bench was nominated as a member to the Rajya Sabha, Justice Ashok Bhushan, was appointed the chairperson of the National Company Law Appellate Tribunal in 2021, four months after his retirement.

Senior Congress leader Abhishek Singhvi recalled the late Arun Jaitley’s 2013 remarks in Rajya Sabha that “the desire of a post-retirement job influences pre-retirement judgements” and further that “it is a threat to the independence of the judiciary…” Answering a question on the appointment at a press conference Sunday, Singhvi said, “We are not talking about individuals… As a matter of principle, we oppose it… as a matter of principle, we believe that this is a great diminution and a great threat to the independence of the judiciary.”

Rejecting the criticism, BJP chief spokesperson Anil Baluni said, the Congress had a habit of politicising every issue. “Former judges have been appointed to different positions countless times in the past. Our Constitution also says nothing against post-retirement appointment of judges,” Baluni, also a Rajya Sabha member, said.

CPM’s Rajya Sabha member AA Rahim also questioned the appointment and said in a Facebook post, “The decision of the Union government to appoint Justice Abdul Nazeer as a Governor was not in consonance with the constitutional values of the country. It is highly condemnable. He (Nazeer) should refuse to take up the offer. The country should not lose confidence in its legal system. Such decisions of the Modi government are a blot on Indian democracy,” Rahim said in a Facebook post.

Born on January 5, 1958, Justice Nazeer was appointed a judge of the Karnataka High Court in 2003. In 2017, he was elevated to the Supreme Court. While he superseded several senior judges, his direct elevation was justified by the Collegium as a move to include a judge from the minority community and ensure diversity on the Bench.

A day before he was set to take the oath, his senior colleague from Karnataka High Court, Justice HG Ramesh, turned down the move to become the Chief Justice of the Madras High Court. “The Constitution of India doesn’t provide for reservation on the basis of religion or caste in the matter of appointment of judges to the high court and Supreme Court,” Justice Ramesh said in an unprecedented letter to then Chief Justice of India JS Khehar.

In his tenure of five years and 10 months in the Supreme Court, Justice Nazeer was part of several Benches that heard and decided significant cases. In the Ayodhya ruling, while Justice Nazeer was part of the five-judge unanimous verdict that decided the title dispute in the favour of Hindus, he had earlier dissented against the 4:1 majority view that refused to refer the issue to a larger bench.

The Supreme Court had refused to reconsider the Ismail Farooqui ruling which held that the offering of prayers in a mosque is not an “essential feature” of Islam. Justice Nazeer’s opinion was the lone dissenting voice against this decision. He also was part of the 3:2 minority opinion in the 2017 triple talaq ruling in which he held that the practice was legally valid.

Justice Nazeer was also part of the 2017 landmark ruling that held the right to privacy to be a fundamental right and the 2021 ruling rejecting the pleas of telecom companies seeking re-calculation of the AGR dues demanded by the government. Just two days before his retirement, he was part of the verdict that cleared the Centre’s controversial demonetisation decision and was also part of the Constitution Bench which held that additional restrictions not found in Article 19(2) cannot be imposed on the right to free speech of ministers and legislators.

As a sitting judge of the Supreme Court, in December 2021, Justice Nazeer addressed the 16th National Council meeting of the Akhil Bharatiya Adhivakta Parishad, a lawyers’ body affiliated to the Rashtriya Swayamsevak Sangh, and spoke on the “Decolonisation of the Indian Legal System”.

— With inputs from ENS, New Delhi