Justice H R Khanna was the ultimate personification of judicial independence. His dissent during the emergency, in the habeas corpus case (ADM Jabalpur v. Shivkant Shukla 1976), cost him the Chief Justiceship of India.
But his deciding vote saved the basic structure of the constitution for future generations of Indians.
A newly appointed judge went to call on him to seek his advice and blessings. Khanna told him that most issues could be easily decided by any man or woman appointed as a judge.
However, there would be some moments, where the judge’s courage would simply be tested in standing up for the right.
The judge so advised, went on to complete a distinguished career as a Chief Justice of a High Court and Chairman of a major tribunal.
Justice HR Khanna was not appointed by a collegium of judges. His appointment by the government came after a process of consultation with the Chief Justice.
However Khanna’s standing firm, in an era marked with calls for a committed judiciary, was followed by a post-emergency era, where judicial appointments of government favourites became a threat to the integrity of the institution.
Ram Jethmalani famously said:
“There are two types of judges. Those who know the law and those who know the law minister.”
To insulate the judiciary, the Supreme Court by a series of judgments took upon itself the process of recommending judicial appointments in a manner that would be binding on the government.
When a majority government in 2014, sought to take back control of the appointment process through the National Judicial Appointments Commission (NJAC), the constitutional amendment was struck down as destructive of judicial independence.
Ever since then, the process of judicial appointments has seen a constant tug of war, between the court and the executive wings of the government.
An Example of Courage & A Legacy to Uphold
It is in this backdrop that we must view the Supreme Court collegium’s reiteration of its recommendation of five candidates, despite the government's objections, as an example of courage.
The move signals the Court's determination to uphold the independence of the judiciary and the principle of judicial appointments based on merit.
For far too long, have previous collegiums avoided confrontation, swept controversies under the carpet and quietly gone about recommending for judgeship only such candidates as were likely to meet the government’s approval.
The current reiteration, is with the approval of Justice Sanjeev Khanna who is next in line to be Chief Justice of India. Coincidentally Justice Sanjeev Khanna, is a nephew of Justice H R Khanna and has a proud legacy to uphold.
The publicly disclosed reasons by the collegium comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul and Justice KM Joseph, while discarding the centre’s objection to the names suggests that the Collegium is also looking towards transparency as a means of eliciting public opinion in its favour.
Judges no longer speak only through their judgments. Reasoned resolutions of the collegium also serve, as information to the public about the respective positions of the executive and the judiciary.
A Clear Indication
The reiteration finally emerged only after the government persisted in its objections to the candidature of Saurabh Kirpal, citing his sexual orientation and foreign partner, and to that of John Satyan, and Somasekhar Sundaresan citing their alleged anti-government posts on social media.
The collegium, however, has deemed these objections to be irrelevant and reiterated its earlier recommendations, stating that the candidates had been selected on the basis of their merit and integrity, and that their personal lives and beliefs were not relevant to their suitability for the judicial office.
This signal from the Supreme Court is a clear indication that the judiciary is no longer willing to be cowed by the executive and is determined to defend its autonomy and the principle of an independent judiciary.
It is a reaffirmation of the Court's commitment to the rule of law and to the principle that the judiciary must be free from political influence or interference.
The collegium’s resolutions of reiteration are carefully worded contributions to legal history. Analysing them will reveal material fit for legal historians of the future. While responding to the government’s objections, the collegium has upheld the constitutional ethos including the right to free speech and expression.
The government’s complaint against candidates who have expressed opinions critical of government measures on social media platforms has been negated through this reiteration and direction to act expeditiously. Publicly stating a critical opinion, is not necessarily a disqualification for judicial office.
The collegium referred to the Second Judges case (1993) which says the candidate to be selected must possess high integrity, honesty, skill, high order of emotional stability, firmness, serenity, legal soundness, ability and endurance, and those recommended possess all these qualities.
If the Govt Still Does Not Act...
And if the government still does not act on the reiterations, it would be a clear violation of the principle of separation of powers and an infringement of the judiciary's autonomy.
The Court may then be compelled to take action to ensure that the recommendations are implemented. These are uncharted waters where a constitutional crisis is not ruled out.
In a larger sense, the court standing firm is a win for democracy and transparency as it reinforces the principle of an independent judiciary which is vital for the proper functioning of a democratic system. It also sends a strong message that the judiciary will not tolerate any attempt to interfere in its affairs or compromise its independence.
A 2018 Press Conference & The Current Reiteration: What Do They Have in Common?
In 2018, a group of collegium judges came forward to address a press conference and took a firm stand against certain actions of the then Chief Justice of India. While that press conference was a stand against internal subversion, the current reiterations are a united institutional response against external bullying.
Both instances reflect the willingness of the judiciary to assert its autonomy and defend its independence when faced with challenges from within or without.
In conclusion, the reiteration by the Supreme Court Collegium, is a bold and commendable move that signals the Court's determination to uphold the independence of the judiciary and the principle of judicial appointments based on merit.
It serves as a reminder of the importance of an independent judiciary in a democratic society and the need for the judiciary to defend its autonomy when faced with challenges from the executive. The issue is now firmly in the court of public opinion and no rule of law, can exist without public support and endorsement.
(Sanjay Hegde is a senior advocate at the Supreme Court of India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)