Prime Minister Narendra Modi came to power about four years ago promising good governance, among many others. An essential dimension of good governance is taking decisions objectively after assessing the merits of different options. Besides, the policy decisions are also to be in tune with the constitution of our country and the democratic traditions. If revenge becomes the norm for taking decisions it will definitely derail not only good governance but also justice, which the constitution of India has promised to all citizens. After rejection by the government of the proposal of the Supreme Court Collegium for elevating Justice KM Joseph, the Chief Justice of Uttarakhand High Court, to the Supreme Court, the impression created among the people and the legal fraternity is that Modi government is being vengeful, that Justice Joseph is being punished for his decision to cancel central rule in Uttarakhand in 2016. The government had earlier rejected the transfer of Justice Joseph from Uttarakhand High Court to Andhra Pradesh & Telangana High Court.
Murali Krishnan in a write up titled, “A Rebuttal to Centre’s Reasons for Refusing Justice KM Joseph’s Appointment” in Indian Legal News on April 26 has exposed the hollowness of the three reasons the central government gave for rejecting the name of Justice KM Joseph.
The first reason given by the government is related to the seniority of Justice Joseph. “ In the All India High Court judges seniority list, Justice KM Joseph is placed at serial no. 42. There are presently eleven Chief Justices of various High Courts who are senior to him”.
This aspect was already considered by the Collegium while recommending Justice Joseph’s name. It is evident from its resolution which states, “While recommending the name of Justice K.M. Joseph, the Collegium has taken into consideration combined seniority on the all-India basis of Chief Justices and senior puisne Judges of High Courts, apart from their merit and integrity”. The resolution also states, “The Collegium considers that at present Mr. Justice K.M. Joseph, who hails from Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judge of the Supreme Court of India.”
The current SC judges Mohan M Shantanagoudar and S Abdul Nazeer weren’t the senior-most judges at the time of their elevation to the apex court. In fact, they superseded as many as 20 judges. Although seniority is a criterion for elevation to the SC, it is definitely not the only criterion.
The second argument given by the government appears to be very silly. “Justice Joseph’s parent High Court is Kerala High Court. If he is appointed as a judge of the Supreme Court, the Kerala High Court, a comparatively small High Court would have two judges from the same parent High Court in Supreme Court”.
According to Murali Krishnan this proposition seems to be irrational for a number of reasons. First all, the Kerala High Court, with a sanctioned strength of 47 judges, is by no means a “comparatively small High Court.” Secondly, the size of a High Court is not a criterion for appointment to Supreme Court.
The third argument is concerning the representation of the Scheduled Caste/Scheduled Tribe community. “ It may also be relevant to mention that there is no representation of Scheduled Caste/ Scheduled Tribe community for long”.
The Supreme Court currently has 7 vacancies and the same will rise to 9 by July this year. Nobody is stopping the Collegium from recommending an SC/ST judge. It is baffling how stalling Justice Joseph’s elevation can help the same.
Thus the three arguments given by the government for rejecting Justice KM Joseph seems to be flimsy. Some legal experts are of the view that the decision of the government is not legally sound. Senior lawyer and Congress leader Abhishek Manu Singhvi said that the ruling government sent back the name of Justice Joseph to CJI as a means of "content-based assault on judiciary.” Former Supreme Court Justice B Sudershan Reddy said the letter sent by the centre giving its reasons against the Collegium's choice "is totally unsustainable".
Justice AP Shah, one of the most respected judicial voices in the country, told NDTV that he felt the executive sends messages that if you decide against the government, there might be some consequences. "I am really concerned with that. In all fairness, the collegium should have acted. The Chief Justice should have acted on this," he said.
The former Chief Justice TS Thakur has disagreed with the government on three counts. First of all, the decision could strike at heart of judicial independence. Secondly, it could lower the people’s trust in the judicial system and thirdly, the decision could have serious impact on high court judges. He is of the view that the centre will be forced to appoint Justice Joseph if the Supreme Court Collegium reiterates its recommendation.
The governments at the centre, irrespective of the parties, often showed a tendency to have a committed judiciary, a judiciary that toes the line of the government. At the same time independence of Judiciary is the soul of democracy. If the government succeeds in appointing the Judges of its choice or reject the judges who are not pliable the independence of Judiciary is at risk. The BJP government, which is very much influenced a controlled by the Sangh Parivar, has shown the penchant for a committed judiciary in view of realizing its ideology of Hindutva.
Bharatiya Janata Party (BJP) is not an ordinary political party, but it is the political wing of RSS in its overall plan of transforming India into a Hindu Rashtra as envisaged by VD Savarkar and MS Golwalker. Most of the members of the BJP are trained in the Hindutva ideology of RSS. The Hindu Rashtra as envisaged by MS Golwalker in his book, ‘We or Our Nationhood Defined’ is a nation of Hindus where the Muslims and Christians have either to become Hindus or to live in India without any rights or privileges, including citizenship rights. An independent judiciary is a road block to realize this vision of Hindu Rashtra. A committed judiciary that would endorse the policies and decisions of the government leading to the realization of the Hindu Rashtra is a requirement in the overall scheme of the Sangh Parivar.
Many policy decisions of the BJP government at the centre and in the states have been oriented towards the realization of Hindu Rashtra. Some of them are putting in place laws banning conversion form one religion to another, banning cow slaughter, beef ban, and restrictions on cattle trade. Hatred and revenge against the minorities seem to be the underlining motives of these decisions. Some of such decisions of the BJP governments are questioned in the court of law. For example the Madurai Bench of Madras High Court stayed the implementation of the Prevention of Cruelty to Animals (Regulation of livestock markets) Rules, 2017. The rules dictated a complete ban on the sale of cattle for the purpose of slaughter, which is serious intrusion into the right to food which is a fundamental right protected under the Article 21 of the constitution. After a period of ten months the Central government was forced to withdraw ban on sale of cattle for slaughter. Naturally the BJP wants to promote judges who will be supporting the government policies for saffronizing the country.
Saffronizing the administration has been a shrewd strategy of the Sangh Parivar. The decision of the central government rejecting the recommendation of the Supreme Court Collegium to elevate Justice KM Joseph to the Supreme Court is to be seen and understood in the wider perspective of Hindutva agenda of the Sangh Parivar and the crucial role of the BJP government at the centre in implementing the agenda.
(firstname.lastname@example.org)(Published on 07th May 2018, Volume XXX, Issue 19)