Judicial appointments: Next in line chief justices likely to pursue fight with govt

NEW DELHI: The Modi government’s testy ties with the judiciary is likely to continue under the next two Chief Justices JS Khehar and Dipak Misra.

According to sources, the conflict between the two won’t be over unless the government gives up its insistence that appointments to the superior courts will only be made after the top court collegium clears the revised memorandum of procedure (MOP), which gives the government the veto power in the name of national security.

“Who sends those who are convicted in terror cases to the gallows? Will we ever recommend someone who is a national security threat as a judge? Do we also have to prove our nationalistic credentials,” a high-level judicial source said on the condition of anonymity.


In any case, the source said, the MOP cannot override the earlier nine-judge ruling of the top court to take away the final say over the process from the judiciary.

“That will go against the nine-judge bench judgement,” the source said.

The source also pointed out that the top court collegium hadn’t formally rejected the revised MOP. That would have put the two wings on a warpath. The very fact that the collegiums have kept the pot boiling indicates that the debate was still alive, and that the judiciary had an open mind on it and was still trying to build a consensus on the issue.

The source said that with the retirement of Justice Anil R. Dave, the composition of the collegiums again changes, with Justice Ranjan Gogoi entering the collegium and Justice Jasti Chalemeswar, who has raised a banner of revolt against the non-transparent nature of the collegium proceedings, becoming the fourth senior-most member of the collegium after the CJI T.S. Thakur, and Justices Khehar and Misra.

The issue will again have to be debated afresh under the new collegiums, the source said.

An attempt is being made to arrive at a consensus on the contentious issue which even has the judiciary divided.

Some judges, such as Justice Chelameswar, have openly espoused the case of elected members having a greater say over appointment of judges in a democracy. They point at other instances the world over in which judges are elected either directly or indirectly.

Another section says that this erodes the independence of the judiciary as majority governments may be tempted to pack the judiciary with committed judges as seen during Emergency. The judiciary is also a divided house and any attempt to arrive at a consensus will take time, the source said.

“The government, however, seems to be holding the appointment process to ransom over the revision of the MOP,” the source said.

The ties between the majority government and judiciary may not improve under the next two Chief Justices either, the source said. Both Justices Khehar and Misra have backed CJI Thakur in his drive to fill up vacancies in the high courts which have crippled the administration of justice.

Several high courts are functioning at less thanhalf their strength, a flashpoint in ties between the two sides. Justice Khehar is in line to be next CJI when CJI Thakur demits office on Jan 3, 2017, has sitting alongside Justice Misra who ruled against the government in the NJAC case.

Justice Misra virtually forced the Modi government to abort its plans to install a BJP government in Uttarakhand.

However, a senior Law Ministry official said off the record cattily: “Justice Thakur is playing the role of the Leader of Opposition. That will not happen under Justices Khehar and Misra.” Adding as an afterthought, he said: “Hopefully!”