From KM Joseph to HR Khanna, using Supreme Court appointments as a tool to discipline judiciary is old political ploy

The recent controversy surrounding the appointment of KM Joseph, Chief Justice of Uttarakhand High Court, to the Supreme Court has reignited the debate over the role of the Executive in judicial appointments. While at one end there is the central government defending the move as 'just' keeping up with the "senior-most" tradition of the Judiciary in appointments and to maintain equal representation of all high courts of India, at the other end are critics and the Opposition terming the refusal as a "revenge politics" that undermine the merit of Justice Joseph.

In other words, the critics — including some existing and former judges of Supreme Court — claim that the central government has refused his appointment as a means to 'discipline' Joseph, who gave an order which was unfavourable to the Bharatiya Janata Party, the ruling party at the Centre.

Whether or not it's true, the debate between the two parties is set to continue. But using judicial appointments as a political tool or to discipline unfavourable judges and bring loyalists on board is not new. Both BJP and Congress, during their tenures, have used it to their benefits. The Congress kick-started it.

File image of Justice KM Joseph. Courtesy: News18

1973: Appointment of AN Ray as CJI superseding JM Shelat, KS Hegde, and AN Grover

This instance of supersession in Independent India's judicial history came in 1973 when then prime minister Indira Gandhi announced Justice Ray as the Chief Justice of India, a day before then CJI Justice Sikri was to retire.

Ray was made CJI superseding three stalwart judges — Shelat, Hegde and Grover. All three judges who were superseded by Ray held the majority view in the 1973 Kesavananda Bharati judgment, which outlined the Basic Structure doctrine of the Constitution.

Justice Ray went on to give several judgments favouring the Indira-led Congress government during the Emergency, including supporting the government view in the much-publicised 1975 Additional District Magistrate of Jabalpur versus Shiv Kant Shukla, popularly known as the 1975 Habeas Corpus case.

According to The Telegraph, Ray's elevation to CJI "prompted a long, countrywide lawyers’ agitation against the perceived attack on judicial independence."

1977: Indira overlooks Justice HR Khanna, appoints loyalist Justice M Hameedullah Beg as CJI

Justice Khanna gave two landmark decisions which formed the basis of Indian constitutional laws. One was the 1973 Kesavananda Bharati judgment in which he stated that certain basic features of the Constitution cannot be altered by bringing amendments in the Parliament, and the second was his view in the 1975 Habeas Corpus case, in which he emerged as the sole dissenting voice in a five-judge constitutional bench, which stated that even the Fundamental Right to life stood abrogated during Emergency.

Justice Khanna paid the price for standing up to Gandhi. He was superseded for the post of Chief Justice of India despite being the senior-most judge in the Supreme Court. The post of CJI went to Justice Beg, another Indira loyalist.

Justice Khanna reportedly revealed in his autobiography Neither Roses Nor Thorns, that he knew that his dissenting judgment in the 1975 Habeas Corpus case had cost him the chair of CJI.

But while Congress punished Justice Khanna for upholding the dignity of the court, when the Janata government came to power after the Emergency, it tried to lure Justice Khanna for political revenge against Congress, writes author Raghul Sudheesh in his article on Firstpost.

In his book, Judges of the Supreme Court of India, George H Gadbois, noted that the Janata government asked Justice Khanna to head the Maruti Commission of Inquiry, but he declined, the article says, adding, "This was particularly due to the fact that he might have to deal with Indira and her son Sanjay Gandhi, and that because he had been denied the post of CJI by her, some sections of the public might not have confidence in his objectivity."

The story of favourable appointments, however, doesn't end with Justice Beg.

1980: Appointment of Justice Baharul Islam to Supreme Court

According to a Times of India article, nine months after retiring as a high court judge, former Congress leader Baharul Islam was made a Supreme Court judge by the Indira government in December 1980. Islam reportedly "went on to give a clean chit to the then Congress chief minister of Bihar Jagannath Mishra in a forgery case" six weeks before his retirement. A month later, he filed nomination as Congress candidate for Barpeta Lok Sabha seat, it adds.

2015: Transfer of Justice Rajiv Shakdher

The NDA government under Prime Minister Narendra Modi has often been accused of using appointments to push its own agendas or to discipline judges. Among the most recent examples, which come to public attention is that of the transfer of Justice Rajiv Shakdher from Delhi High Court to Madras High Court in 2016, few months after the judge rapped the government for offloading Greenpeace activist Priya Pillai from an aircraft to London in 2015.

Justice Shakdher had set aside the government's decision, saying it was "illegal" and that the right to criticise cannot be "muzzled" by the state. Justice Shakdher had said that Pillai has a fundamental right to travel abroad and also she has every right to hold a different opinion on development policies and this cannot be the sole ground to restrict her movement.

Writing for LiveLaw, author Santosh Paul, says that Justice Shakdher's order broke far more ground than the Supreme Court’s decision in Maneka Gandhi (1978), and that the judge had to pay the price for showing courage with a transfer order.

2018: Centre refuses to appoint Justice KM Joseph

Justice Joseph is the latest member of the Judiciary to come directly under the firing line of the Central government. The Centre recently refused the collegium recommendation to elevate Justice Joseph to the Supreme Court citing reasons such as the adequate representation of all high courts, communities as well as respecting the seniority of judges.

But is that the only reason?

The BJP government has a solid political reason to be upset with Justice Joseph. In 2016, Justice Joseph had struck down the hastily imposed President’s Rule in Uttarakhand. Echoing the sentiment of the Supreme Court’s SR Bommai (1994) judgment, Justice Joseph wrote:

"The government, when it takes action under Article 356, is expected to be completely non-partisan but the centre had imposed President’s Rule contrary to the law laid down by the apex court.”

The Uttarakhand High Court's Chief Justice's order to quash the President's Rule had caused great embarrassment for the BJP government at the Centre.

With inputs from agencies.