Training guns on the Congress governments, Union Minister Arun Jaitley on Sunday said that while the government was well within its right in “referring a recommendation back (to collegium) with relevant inputs”, it was “unsavoury past experiences” that made judiciary wary of the executives role in judicial appointments. In a blog, Jaitley, who is also a senior lawyer, rejected the “hue and cry” made by the Congress over the Narendra Modi government recently sending back for reconsideration to the Supreme Court collegium a name that it had recommended, as he dwelt on the record of past Congress governments.
“Times moved on and through a series of judicial pronouncements, the court started diluting the role of executive in judicial appointments. The Constitution envisages an important role for the executive. It is a part of the democratic accountability. “The executive can give inputs, it can even refer a recommendation back with relevant inputs for reconsideration but is eventually bound by the recommendations. This is contrary to the text of the Constitution,” he added.
The Supreme Court ruling on selection and appointment of judges lays down that the government is bound to issue orders of appointment of a judge if the collegium reiterates a decision after considering a government referral. The opposition accused the Modi government of scuttling the judicial autonomy when in April this year, it rejected the name of Justice K.M. Joseph for elevation to the Supreme Court as a judge, while clearing the name of lawyer Indu Malhotra.
Justice Joseph, as the Chief Justice of Uttarakhand High Court, had quashed the Modi government’s decision to impose President’s rule in the state in 2016. Claiming “past experiences perhaps weighed with the court in diluting the role of the executive in judicial appointments”, Jaitley also related some past incidents wherein the Congress governments either directly influenced judicial appointments — such as superseding three judges to appoint A.N.Ray as Chief Justice of India by Indira Gandhi government – or tried to change the “arithmetic” of constitutional benches of the apex court in their favour.
Citing other instances from the Nehruvian and Indira era of government interference in judicial appointments, he said that when Justice H.J. Kania, who took over as the first Indian Chief Justice of the Federal Court – the pre-Constitution predecessor of the Supreme Court, started recommending names for appointment to the High Courts, “it caused a significant flutter. Pandit (Jawaharlal) Nehru questioned his suitability to be the first Chief Justice of India”.
He said that Justice Bachu Jagannadha Das made it to the Supreme Court “because of his strong Congress party connections” as his name was “strongly recommended” by Rajendra Prasad, V.V. Giri and then Orissa Chief Minister H.K. Mahtab. On the Indira years, Jaitley said: “Chief Justice Hidayatullah recommended the names of Justices S.P. Kotwal and M.S. Menon to the Supreme Court. The executive did not respond to either of the two names and ignored the recommendations. The Chief Justice meekly submitted….”
After swallowing the bitter pill of Golaknath case in 1967, the government tried to influence the “arithmetic” by way of ensuring that the future judges had to follow the social and political philosophy of the government, Jaitley said. He also dwelt on how the Indira government, through a handful of judges favourable to it, tried to (unsuccessfully) postpone the order in the historic Kesavananda Bharati case till the retirement of then Chief Justice S.M. Sikri, who headed the 13-judge bench in the case. “I have written this blog so that my friends in the Congress party get an opportunity to look at the mirror,” Jaitley said.