Various former judges believe that rejecting post-retirement appointments on the basis of Intelligence Bureau inputs is discouraging and troubling.

New Delhi: In administrative decisions similar to those taken in 2016, the union government has reportedly cited “secret” intelligence bureau inputs to block post-retirement assignments to former judges. According to an Indian Express report, the Centre has rejected the candidatures of at least six former judges who were recommended by the judiciary for positions of either chairpersons or members of various tribunals and commissions.

It may be noted that the the stand off between the judiciary and the government is not new. Last year, the-then chief justice of India T. S Thakur had publicly complained about the government’s inaction in filling up a large number of vacancies in India’s higher judiciary. The delay by the government in clearing the appointment of judges has been a source of worry for the judiciary.

In November, 2016 the government had referred back the names of 43 recommendees out of a list of 77 which the SC collegium had finalised for appointment in various high courts. Minister of state for Law P.P.Chaudhary had cited “adverse IB inputs” as one of the reasons for sending the names back for reconsideration. However, the collegium, with which the final decision rests at present, had reiterated 37 of its recommendations and withheld six names for further consideration.

It is in this context that the latest development of the government rejecting judiciary’s recommendations may intensify the distrust between the two pillars of democracy. While the judiciary has superior powers when it comes to the appointment of serving judges, the decision to appoint former judges as chairpersons or members of tribunals and commissions are taken by the government, provided it gives sufficient reasons. The government’s decision to block SC’s recommendations is constitutionally valid but is being seen by experts as an unconventional act, which may rub the judiciary in a wrong way.

According to the Indian Express report, the six judges who were rejected for post-retirement posts include two who recently retired as SC judges, two who served as chief justices of high courts and two former high court judges.

The report said, “These judges, it is learnt, were recommended by the judiciary for appointments to panels that include Telecom Disputes Settlement and Appellate Tribunal, Competition Appellate Tribunal, National Consumer Disputes Redressal Commission, National Company Law Tribunal and Armed Forces Tribunal.”

It further says that the names were finalised and sent to the appointments committee of the cabinet (ACC) for approval only after “after due diligence by the administrative ministry concerned.” The ACC rejected four judges because of “adverse IB inputs” while it did not ascribe any reason for rejecting the other two names.

The report mentions that in all probabilities the judges who have received adverse IB inputs, which have now been recorded by the cabinet secretariat, will not be reconsidered for any post-retirement position even in the future.

However, the report interestingly notes that the government has made an exception in the case of one recommended judge, who, too, had received an “adverse IB input” but was appointed as a member of a tribunal. Various former judges believe that the rejection on the basis of IB inputs, which lack any corroborative evidence, is discouraging and is may make it difficult for the chief justice of India to convince retired judges to take responsibility of tribunals and commissions.

“On what basis did the IB find a former judge of the Supreme Court of doubtful integrity? We aren’t talking about just anyone. It is about judges who have sat in the highest court of the land. I have seen many such IB reports when I was a member of the collegium and they are mostly based on hearsay. If the government is doing what you are telling me, then it is worrisome signal,” a retired Chief Justice of India who didn’t wish to be named was quoted as saying to the Indian Express.

After the SC struck down the proposal of National Judicial Appointments Commission (NJAC), in which the government had a role to play in appointing judges, and revived the collegium system governed by the SC judges, opposition parties and legal experts have accused the government of circumventing the NJAC judgment through backdoor means like delaying administrative decisions to appoint judges or using it influence on the judiciary. Activists cried foul when the NSA chief Ajit Doval held a briefing for SC judges on the issue of national security last year.

While striking down the NJAC Act, the Supreme Court had asked both the judiciary and the government to come up with “appropriate measures” to improve the functioning of the collegium system. Both the parties had agreed to formulating a Memorandum of Procedure (MoP) in this regard. The MoP, which was supposed to be finalised early this year, has not made much headway as both the judiciary and the executive have been caught in a bitter battle over terms and conditions of MoP. The government reportedly has been trying to garner as much influence over the collegium appointments as possible following the adverse NJAC judgment it had to suffer.

However, recent reports suggest that the collegium has agreed to strike down a candidate’s appointment if the government objects to it on grounds of “national security”, a limited but a substantial success for the government in its pursuit for better bargaining power with the judiciary. This may mean that the government’s frequent citations of “adverse IB inputs” or other such unsubstantiated reasoning against a candidate could be a major roadblock for judiciary to act independently.

In these circumstances, the government’s decision to reject SC recommendations yet again, although for post-retirement positions, may further deepen the rift between the judiciary and executive.