The right man for the job

How the process of appointment of judges to the Supreme Court changed in the Seventies

Written by Abhinav Chandrachud | Updated: May 19, 2018 12:15:12 am
Justice MN Chandurkar. Courtesy: Anjali Chandurkar

Title: Supreme Whispers: Conversations with Judges of the Supreme Court of India
Author: Abhinav Chandrachud
Publisher: Penguin Random House
Pages: 332
Price: Rs 599

Prior to the 1970s, a judicial candidate’s political ideology was not much of a concern in the judicial appointments process. In 1958, the Law Commission wrote in its iconic 14th report that there may sometimes have been political reasons for appointing a judge to a court, but this had more to do, as we have seen, with political patronage than ideology. However, things began to change when, in February 1967, a bench of eleven judges of the Supreme Court held, by a slender majority of six judges to five, in Golak Nath v. State of Punjab, that Parliament had no power to amend the Constitution to take away or abridge the fundamental rights, including the right to property. The Supreme Court also handed down “two catalytic defeats” to the Indira Gandhi government in the Bank Nationalisation case and Privy Purses case.

Judicial appointments started being overseen by the law ministry in the government instead of the home ministry, and ministers in the Indira Gandhi government thereafter started attempting to pack the court in order to overrule the judgment of the Supreme Court in Golak Nath. One of those ministers was S Mohan Kumaramangalam, cabinet minister for steel and mines. Kumaramangalam had been the advocate general of Madras who had appeared in Golak Nath, on the losing side, at the Supreme Court. Kumaramangalam openly advocated the doctrine that the ideology of judges must be considered while determining whether they were fit for appointment to the Supreme Court. He became bold about saying this while justifying the supersession of the three judges, JM Shelat, KS Hegde and AN Grover, after they had decided against the government in the Basic Structure case, where the court held that Parliament did not have the power to amend certain “basic features” of the Constitution. Though Kumaramangalam died in a plane crash in May 1973, his legacy, said Justice Pathak in 1983, was that the social philosophy of judges had begun to be considered while appointing them.

Thereafter, while ascertaining whether or not to appoint someone as a judge, the government started looking at whether that person had identified himself, even in the most inconsequential manner, with an opposition party. According to Asoke Sen, who served his second term as law minister between 1984 and 1987, the government during that time would not appoint anyone with known anti-Congress views, though it was not looking for minions who would agree with it on everything. [George] Gadbois himself thought that this was reasonable. Chief Justice [YV] Chandrachud said that the government was looking for judicial candidates who would support it in general. The government would look at a judge’s judgments and antecedents, and especially at whether he had been close to opposition groups or had attended functions organised by such groups, for example, the RSS. The government then rejected candidates who they thought did not fit their ideology.

This is what happened with [MN] Chandurkar, a Bombay judge who was chief justice of the Bombay High Court in early 1984 and thereafter the Madras High Court between 1984 and 1988. Chief Justice Chandrachud recommended him for appointment to the Supreme Court in 1982 and 1985, a few months before his own retirement. Justice Bhagwati refused to support this appointment and “torpedoed” it by going to the prime minister and saying bad things about Chandurkar. This was despite the fact that Bhagwati had told Chandrachud that he would support Chandurkar’s appointment.The government informed Chandrachud that Chandurkar had attended the funeral of RSS leader MS Golwalkar and had said nice things about Golwalkar in a eulogy. Golwalkar had been a friend of Chandurkar’s father. Chandrachud thought it was preposterous that Chandurkar should have been labelled an RSS man for merely attending a funeral. However, Prime Minister Gandhi told Chandrachud, “my party people think he’s not good”, and for the first and only time, frankly told him, “Chandurkar is not likely to be helpful to us” (i.e. to her Congress government).

The government also rejected judges who were too independent-minded. For example, GP Singh, chief justice of the Madhya Pradesh High Court, was recommended by Chief Justice Chandrachud for appointment to the Supreme Court. Chandrachud wanted Singh in the Supreme Court “very badly”. However, the government rejected this appointment. This was because, as chief justice, Singh had refused to recommend names for appointment to the high court which were suggested by a Congress (I) chief minister. Apart from this, his reputation as an independent judge hurt him. Every time Chandrachud tried to suggest Singh’s name, the government would say ‘please suggest another name’, without giving him any reasons for rejecting it. “The Government could always oppose,” said Chandrachud, “but never impose.” When Singh retired as chief justice in 1984, GL Oza took over as acting chief justice and appointed all the names recommended by the government to the high court. Thereafter, he was made permanent chief justice and then promoted to the Supreme Court.

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