With less than a month to go before Chief Justice of India T S Thakur demits office, India’s higher judiciary appears to be caught up in a web of dirty politics after a body of Supreme Court lawyers held Justice J S Khehar, the most likely successor as the CJI, to be unfit for the post.
In a civil writ petition filed in the Supreme Court on Saturday, the lawyers’ organisation, National Campaign for Judicial Transparency and Reforms (NCJTR), has contended that Justice J Chelameshwar, who is senior to Justice Khehar, be appointed as the 44th CJI.
- Justice Jagdish Singh Khehar is set to become India’s first Sikh Chief Justice of India on 4 January 2017.
- The petition comes after Prashant Bhushan asked Justice Khehar to excuse himself while hearing the Birla/Sahara diary case.
- The NCJTR’s petition before the Supreme Court lays down their serious dissension with Justice Khehar’s appointment and suggests Justice Chelameshwar as an alternative.
- The petition argues Khehar is upright, harsh on the smallest of mistakes by lawyers and favours high-profile lawyers openly.
- But perhaps, the gravest allegation is that by presiding over the NJAC judgment, Justice Khehar has rendered his appointment unconstitutional and unfairly influenced.
Who Started the Fire?
The targeting of Justice Khehar comes a couple of days after activist-lawyer and counsel for an NGO, Common Cause, Prashant Bhushan, pointedly requested the CJI-to-be to recuse himself from hearing a case which alleges that Prime Minister Narendra Modi accepted Rs 55 crore as bribe when he was the Gujarat chief minister and just before the 2014 Lok Sabha elections.
Bhushan’s suggestion was that since it is the Prime Minister who will sign on Justice Khehar as the next CJI, he ought to recuse himself from adjudicating the matter. But while Justice Khehar, who was accompanied on the bench by Justice Arun Misra, was upset over Bhushan’s suggestion, the two-judge bench fixed 11 January for a separate constitution bench to hear the matter. Despite the exchange of heated words with Bhushan, Justice Khehar, who is is due to take over from Chief Justice Thakur on 4 January, relented and recused himself from hearing the alleged corruption case against Modi.
Grievance #1 : “[. . .] Takes Contempt for the slightest of mistakes...”
The NCJTR’s petition has, however, sought to make the judicial waters turbulent. In its petition, the lawyers’ body, which claims to represent the “non-elite class” of advocates, describes Justice Khehar as “one of the most upright judges of the Supreme Court” but in the same vein singles him out “to be not the right choice as the next CJI, for, His Lordship’s temperament would prove him to be otherwise.”
The NCJTR has accused Justice Khehar to be “very short-tempered; very aggressive; and at times perceived to be tyrannical on the lawyers and litigants as His Lordship takes Contempt for the slightest of the mistakes that occur at the Bar, which is, with much respect, in loud contrast with the universally accepted qualities of an ideal judge.”
Grievance #2: New CJI is Elitist
The other “grievance” of the petitioners is that Justice Khehar “expresses too much of respect for the high profile lawyers, very patently, much the discouragement of the ordinary and less privileged.”
Grievance #3: It was Rigged
Claiming that the they are “not very enthusiastic” about the impending appointment of Justice Khehar as the next CJI, the NCJTR says that the Chief Justice-designate, in issuing the judgement over the National Judicial Appointments Commission (NJA), “has done irreversible damage to the institution of judiciary and its democratic legitimacy…The said judgement meant the annihilation/killing of the dream of the people of India to have judges of the higher judiciary being appointed through a mechanism which is independent of the executive and equally independent of the judiciary so that the most meritorious men and women of character and integrity are appointed to the seat of justice.”
The NCJTR, whose petition has sought to pitch for Justice Chelameshwar, suggests that “while deciding the NJAC case, Justice Khehar certainly was deciding a case where His Lordship’s ‘own appointment as the CJI was involved’ – a case of manifest conflict of interest.”
The NCJTR petition goes a step further to suggest that by quashing the NJAC Act of 2014, Justice Khehar ensured his own appointment as the CJI based on seniority. “By presiding over the Five-Judge Constitution Bench and authoring the judgement in the NJAC case quashing the said Acts has given room for thousands and thousands of the members of the legal fraternity and the common men of the country to think that His Lordship thereby has averted even the remotest chance of the NJAC, which will consist of two laymen titled as ‘eminent persons’, becoming a reality and appointing Justice Chelameshwar as the next CJI or anyone else whom the NJAC consider as most appropriate,” the petition states.
Questioning the practice of appointing CJIs on the basis of seniority alone, but not merit, integrity and judicial soundness, the NCJTR petition asserts that the “appointment of the Chief Justice of India, purely on the basis of seniority when the foundation of such seniority is a selection in a non-transparent manner, nay, arbitrary manner, such appointment would violate the ‘basic structure’ of the Constitution.”
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