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Arun Jaitley's lesson for Congress: Role of executive in judicial appointments part of democratic accountability

On Sunday, in a Facebook post, Finance Minister Arun Jaitley contemplated the issue of judicial appointments at the Supreme Court with reference to TR Andhyarujina’s masterpiece The Kesavananda Bharati Case – the Untold Story of Struggle for Supremacy by Supreme Court and Parliament. Jaitley, writing the post amid much controversy over judicial appointments in the apex court, warns the Opposition not to ignore history or the importance of the executive in such decisions. Here is the full text of the post.

Recollecting an Important Chapter of History – Judicial Appointment

I re-read TR Andhyarujina’s masterpiece “The Kesavananda Bharati Case – the Untold Story of Struggle for Supremacy by Supreme Court and Parliament” (Published 2011).  To this, I have added my reading of a series of essays written by various authors and edited by Arghya Sengupta and Ritwika Sharma titled “Appointment of Judges to the Supreme Court of India – Transparency, Accountability and Independence” (Published April 2018).   The two publications contain several facts, supported by pre-published material, which were known to several senior colleagues in the legal profession.  This ought to be shared with a larger constituency.

The Nehruvian Era

File image of Arun Jaitley. PTI

File image of Arun Jaitley. PTI

Justice HJ Kania took over as the first Indian Chief Justice of the Federal Court – the pre-constitution predecessor of the Supreme Court.  When Justice Kania started recommending names for appointment to the High Courts, it caused a significant flutter.  Pandit Nehru questioned his suitability to be the first Chief Justice of India.  It was only Patel’s pragmatism that had enabled him to “manage” Justice Kania.

There is a reference to contemporaneous correspondence. Two letters of Sardar Patel – one to Pandit Nehru dated 23 January, 1950 and yet another letter dated 12 November, 1950, which substantiates this.

Justice Bachu Jagannadha Das made it to the Supreme Court because of his strong Congress Party connections.  He had fought an election and served in the Madras Corporation.  His case was strongly recommended by Dr Rajendra Prasad, Shri VV Giri, who was then India’s High Commissioner in Colombo and the Orissa chief minister Shri HK Mahtab, who in writing recommended that “My friend Jagannadha Das be recognised for his seniority and be appointed to the Court”.  Such political recommendations are today unthinkable.

Indira Gandhi Era

Chief Justice Hidayatullah recommended the names of Justice SP Kotwal, the Chief Justice of Bombay; Justice MS Menon, Chief Justice of Kerala to the Supreme Court.  The executive did not respond to either of the two names and ignored the recommendations. The Chief Justice meekly submitted and never questioned the inaction.

An important turn in the judicial appointments history was the decision of the prime minister to appoint ideologically committed law ministers so that judicial appointments could be influenced by the social and political philosophy of the judge.  The duo of law minister HR Gokhale and the steel and mines minister, Mohan Kumaramangalam, took charge and on their priority was the need to reverse the decision of the Supreme Court in Golaknath case.  Golaknath had read into the Constitution amending power of Parliament an implied restriction so that democracy itself can’t be tampered with.  The senior judges of the Supreme Court included one of whom was a part of the majority opinion in the Golaknath case and some others had expressed their opinions in the bank nationalisation and privy purses against the government.

To change the arithmetic, the future judges had to follow the social and political philosophy of the government. “Never before could any of the Judges who were to be seen to have a primary political sponsor, it had to be accepted that the appointments were initiated by the Chief Justice to the law minister.  Law minister HR Gokhale initiated the appointment of his Bombay High Court colleagues DG Palekar, YV Chandrachud, Sidhartha Shankar Ray recommended Subimal Chandra Ray and AK Mukherjee; Mohan Kumaramangalam recommended KK Mathew,  C Subramaniam recommended his classmate Alagiriswamy and Indira Gandhi herself recommended Mirza Hameedullah Beg and Surendra Narayan Dwivedi from family’s hometown, Allahabad.” The author cites in support the views of Judges P Jaganmohan Reddy and AN Grover, the then sitting judges.  This was a pre-preparation for changing the numbers equation in the Kesavanand Bharati case which had to sit in review of the Golaknath case.  Needless to say that many of the above who were on the bench were part of the pro-Government minority opinion in the Kesavananda Bharati case.

Kesavananda Bharati Case

It goes to Andhyarjuna’s credit that having appeared with HM Seervai on the government side, he has authored a brilliant and accurate day by day history of how the Kesavananda case proceeded.  There was acrimony on the bench.  The citizen was represented by none other than Nani Palkhiwala and the Government by HM Seervai with supporting arguments from Attorney General Niren De.  When a judge the counsel a question, someone with an alternate opinion on the bench would answer it.  It was a thirteen Judge Bench and the obvious object of both sides in a dividing bench was to reach the figure of 7 for the law to be laid down.  There are several interesting episodes which need to be stated.

When opinion seem to be swinging in favour of the citizen, there were worries on the government side. Chief Justice Sikri was to retire after the hearing and delivering of the judgement.  There were only few weeks left to his retirement.  The hearing had to be concluded, the judgement has to be written and delivered before his retirement day.  The government was keen that the case should not conclude till Justice Sikri’s retirement.  It had already planned that on the day of Justice Sikri’s retirement, Justice Shelat, Justice Grover and Justice Hegde would be superseded.  This will completely change the arithmetic of the bench.  The bench, particularly the Chief Justice, was determined not to adjourn the case.  Justice MH Beg got admitted to the All India Institute of Medical Sciences.  The bench adjourned up for the week hoping that it would come back by Monday.  The Chief Justice held a meeting and decided that Justice Beg was unable to come back and remaining twelve judges would hear the case.  The bench would stand reconstituted.  Justice Beg did come back but after the arguments of the state had been completed and Palkhiwala was giving the rejoinder with two days of the rejoinder left, Justice Beg went back to the hospital once again.  The hospitalisation of Justice Beg took place thrice.  The bench again adjourned the hearing.  Uncomfortable with the situation the Chief Justice went personally to the All India Institute of Medical Sciences ostensibly to inquire if it was a serious ailment.  He was informed by the doctors that they had advised Justice Beg rest for an indefinite period of time.  To his query as to what was the seriousness of the ailment, he was told that it was a case of “high blood pressure”.  The Chief Justice again called the lawyers and the judges and had meetings to find a solution.  He suggested that the balance twelve judges would hear the case in the next two days, complete the arguments and reserve the judgement.  To a suggestion that the case could be heard without Justice Beg, the Attorney General said that in that event I shall walk out.  Surprisingly, Seervai also threatened to walk out.  The remaining judges assembled the next day to pronounce the order but Palkhiwala saved the situation and said his arguments stood concluded, the judgement could be reserved and what he had to argue over the next two days, he would submit in writing.  The judgement stood reserved.

The lawyers appearing on the citizens' side had identified who the pro-government judges were.  In fact, one of them, Justice Dwivedi, stunned everyone when he told Palkhiwala in open court that if you are willing to procure from the Parliament that the other fundamental rights were unamendable if he were to concede that the Right to Property is not a fundamental right.

Finally came the judgement day.  Six judges held that fundamental rights were unamendable.  There was an implied limitation on the power of Parliament to amend.  Six others held that Parliament had the power to amend every Article of the Constitution.  The thirteenth judge HR Khanna held that the implied limitation on the power to amend was in relation to the basic structure of the Constitution.  The opinion of one judge thus became the law.  After the judgement had been read and the Chief Justice read out the final order with regard to the law declared by the Supreme Court and then signed the same, he circulated it to the bench for signatures.  Four of the dissenting judges – Ray, Beg, Mathew and Dwivedi refused to sign the order.  The Kesavananda Bharati’s final order is signed by only nine of the thirteen judges.  That very day Shelat, Grover and Hegde were superseded and AN Ray became the new Chief Justice. Upon Ray’s retirement, Khanna was superseded and Beg became the Chief Justice.

The Present Context

Times moved on and through a series of judicial pronouncements the court started diluting the role of the executive in judicial appointments.  The Constitution envisages an important role for the executive.  It is a part of the democratic accountability. Past experiences perhaps weighed with the court in diluting the role of the executive in judicial appointments.  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. The hue and cry made by my friends in the Congress Party recently when the government referred a case back for reconsideration, fades into the oblivion.  It is part of the much-diluted role of an elected government that relevant inputs be brought to the notice of the collegium.  This is consonance with democratic accountability.  All must know this important chapter of history.

I have written this blog so that my friends in the Congress party get an opportunity to look in the mirror.

The entire text has been taken exactly as posted on Arun Jaitley's Facebook profile and has been checked for style and clarity by Firstpost.

Updated Date: Jun 10, 2018 15:55 PM

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