Supersession, seniority and the country’s next Chief Justice
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Supersession, seniority and the country’s next Chief Justice

Bar & Bench

Alok Prasanna Kumar

Yesterday, the current Chief Justice of India TS Thakur sent a formal recommendation to the President of India, suggesting the name of Justice Jagdish Singh Khehar to be India’s 44th Chief Justice and the first Sikh to hold that office.

If past convention and practice is anything to go by, in about two to three weeks, the President will formally issue the warrant of appointment, and on January 4, 2017, Justice JS Khehar will preside over the Chief’s Court in the Supreme Court of India.

If.

I haven’t used that “if” in the previous paragraph lightly or just formally. There is a real possibility that the sequence of events I have discussed above will not happen, for no other reason other than the Central Government not wanting it to happen.

We do face the real prospect that the present dispensation may not adhere to the seniority convention and appoint the senior most judge after the present CJI, Justice Khehar, as the next CJI. Why it may happen and what happens next is what this piece discusses.

But first, a bit of history.

Supersession in the Nehru age

As any keen reader of the Constitution of India will know, the seniority convention is nowhere mentioned when it comes to the matter of the appointment of the Chief Justice of India. Article 124 is silent about this, and there is nothing in the Constituent Assembly Debates which suggests that the seniority convention was what they had in mind for appointment of judges.

Indeed, this came into question when, upon the death of the first Chief Justice of India HJ Kania in 1951, the then Prime Minister, Jawaharlal Nehru wished to appoint the next Chief Justice of India, overlooking the senior-most judge, Justice Patanjali Shastri. There was no official notice or mention of this, but the six remaining judges of the Supreme Court of India threatened to resign if the “supersession” of Justice Shastri went through. Not wanting to throw the infant republic into a constitutional crisis, Nehru backed down, and Justice Shastri was appointed CJI.

The next time Supreme Court succession became an issue was in 1963-64 when, by the seniority convention, Justice Syed Jaffer Imam was supposed to become the Chief Justice of India. However, he was very ill, being barely in a position to attend court or carry out any of the functions that a Chief Justice would be expected to. There being no provision to remove a judge of the Supreme Court on the grounds of ill health, a constitutional crisis threatened to flare up. Ultimately, it fell upon Nehru to once again defuse the situation as he prevailed upon his old friend, Justice Imam, to resign and pave the way for the next in line, Justice Gajendragadkar to take over.

Whatever his disagreements with the Court’s approach to land reform, constitutional interpretation or fundamental rights, Nehru did not actively try to bend the Supreme Court to his will by “packing the Court”. As multiple Chief Justices and sources have attested in George H Gadbois book Judges of the Supreme Court of India: 1950-1989, the Government did not try to interfere in judicial appointments in the first two decades of the Republic.

The next two decades though, were a very different story.

Indira Gandhi and supersession

The two most notorious instances when the seniority convention was dropped in appointing the Chief Justice of India, both happened under the Prime Minister-ship of Indira Gandhi. In both cases, it was because the Government did not like the judgments delivered by the judges who were in line to be Chief Justices of India.

On the day the famous Kesavananda Bharati judgment was delivered, the country also found out by radio, in the evening, that the Government had decided to appoint Justice AN Ray, who had held in the Government’s favour, as Chief Justice of India, superseding Justices Shelat, Grover and Hegde who had held against it.

The three superseded judges promptly resigned. The SCBA went on a one-day token strike. Life went on as usual after that.

Later, in 1977, Justice HR Khanna was superseded by the Government at the height of the Emergency for having dared to dissent in the ADM Jabalpur case. The other three puisne judges who had found in favour of the Government (apart from CJI Ray) in that case all got to be Chief Justices in their turn.

What about now?

Much has changed since the last time a judge was superseded and lost his chance to become Chief Justice of India by dint of seniority. We have had four cases on the appointments of judges and the whole system for appointment has changed since 1994, when the Supreme Court delivered its judgment in the Second Judges case creating the collegium and, in addition, enshrining the “seniority convention” as law for the purposes of the appointment of judges.

This was confirmed in the Third Judges case in 1999 and was treated as the basis for striking down the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2015 in the Fourth judges case.

In theory, a supersession might even be unconstitutional.

In theory.

It cannot be gainsaid that one of the hallmarks of the Narendra Modi-led NDA-2 Government has been constant friction with the judiciary. It started with the “borking” of Gopal Subramanium, has continued with the NJAC case and the tussle over the Memorandum of Procedure for appointments, and has seen constant sniping over delays in appointments, with both sides blaming each for the alarming number of vacancies in the High Courts and the Supreme Court.

This is not even including the specific instances of key cases in which the ruling party had an interest in, namely the dismissal of the Congress-led Governments in Uttarakhand and Arunachal Pradesh, which did not meet with favour from the Supreme Court. Relations between the executive and the judiciary have been testy to say the least, and promises to get testier when Justice Khehar, who headed the bench in the Fourth Judges case and the Arunachal Pradesh case, takes over.

If the refusal to give Raghuram Rajan an extension at the Reserve Bank of India is anything to go by, the present government is not one to go by convention or past practice. The refusal to give Rajan an extension (granted almost as a matter of course to the last few Governors of the RBI) provides us a glimpse into the thinking of the Government on this: an outspoken head of an institution is not welcome.

The Urjit Patel-led RBI’s almost desultory concurrence with the disastrous demonetization idea and its subsequent subordination to the Finance Ministry suggests to us that this is what the Government wants from a supposedly independent body.

With dissension in the open over the NJAC judgment and the collegium functioning, perhaps the Government would want to see how it responds to another external challenge, this time in the form of the supersession. Will the judges stand together, refusing to abide by this decision and threatening to resign en masse? Will they find support from the legal community, nationwide, as Pakistan’s Chief Justice did in 2007?

History suggests otherwise.

If the experience of the supersession in the 1970s is anything to go by, there is unlikely to be much resistance from within the judiciary, let alone any united front against intervention by the Government or a nationwide movement of lawyers against the Government.

Any possible implications of superseding Justice Khehar on the upcoming State Assembly elections in Punjab and Uttar Pradesh, (even if taken at face value) are unlikely to matter as much, as having a pliant and cooperative judiciary which knows that judges’ career prospects will depend on how pro-Government they are. Judges who put their career prospects before the institutional integrity of the judiciary are also unlikely to bring themselves to uphold and apply the Second Judges case and strike down any supersession as illegal.

This is of course speculation, and I hope I turn out to be utterly wrong. That said, the point of this piece is this: What lawyers and a lot of lay persons tend to forget is that the law does not enforce itself. It needs institutions, staffed by living, breathing human beings, who are willing to do their duty to uphold it. This is as true of the beat policeman as it is of the Chief Justice of India. Any system of rule of law governance is only as good as the people willing to uphold it, not in the best of times, but in the worst of times.

Alok Prasanna Kumar is an advocate and Visiting Fellow at the Vidhi Centre for Legal Policy. Views expressed in this only the author’s and should not be construed to be the views of any organisation.
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