Written by Anup Surendranath, Aparna Chandra and Suchindran Baskar Narayan

The appointment of Indu Malhotra as a judge of the Supreme Court should have been a reason for unmitigated celebration. She will become only the seventh woman in the history of independent India to be appointed as a judge of the country’s highest court. The momentous nature of this appointment cannot be overstated given the under-representation of women in all aspects of public life in India. Instead, this moment has now become about whether the SC has the will and conviction to forestall this government’s creeping and forceful assault on its powers.

The government’s actions come at a time when there is a sense of crisis surrounding the relationship between the executive and the judiciary. For over three months, the government sat on a composite recommendation to appoint Indu Malhotra and K M Joseph, and chose to act only after very public expressions of discomfort by senior SC judges. After Justice Joseph struck down the imposition of the president’s rule in Uttarakhand in April 2016, the government also exercised “pocket veto” for nearly two years by ignoring the collegium’s recommendation to transfer Justice Joseph to the Andhra Pradesh high court as its chief justice. This is also the government that returned the collegium’s recommendation to appoint Gopal Subramanium as a judge. Subramanium notably was amicus curie in the Sohrabuddin fake encounter case. These events should inform any scrutiny of the government’s response to the collegium’s recommendation elevating Justice Joseph.

The law minister’s reasons for sending back Justice Joseph’s recommendations do not carry any real weight. His official reply states that Justice Joseph was 42nd in the all-India high court judges seniority list and 12th in the high court chief justices seniority list. While that is true, he has failed to mention that Justice Joseph is the senior-most chief justice of a high court in terms of experience as chief justice, having served two years more as CJ than the other current CJs.

It is also surprising to see seniority being invoked suddenly in this case. There are numerous examples where judges of high courts were elevated to the SC despite not being the senior-most as per all-India seniority, according to the date of initial appointment. In the last round of appointments to the SC, this very government approved the appointments of Justices Mohan Shantanagoudar, Navin Sinha, Deepak Gupta, S K Kaul and Abdul Nazeer, against the seniority norm. Further, the SC in the Second and Third Judges’ case has explicitly held that seniority cannot be the sole determinative factor in deciding suitability for elevation, and that other considerations such as merit may outweigh the seniority norm. It is pertinent that in recommending Justice Joseph, the collegium expressly noted his all-India seniority but categorically stated that he was more deserving of the appointment than other judges.

The law minister seems to lay great emphasis on the fact that Justice K M Joseph’s elevation might lead to Kerala’s over-representation in the SC because Justice Kurian Joseph is already in the SC. (Justice Kurian Joseph is due to retire in November 2018). However, the use of state representation to send back the nomination of a judge is curious given that this very government approved the appointment of Justice S K Kaul despite the presence to two other judges (Justice Madan Lokur and Justice A K Sikri) from Delhi.

Similarly, the minister’s reason citing lack of representation from among the SC/STs is a curious one. Lack of diversity cannot be cited as an ex post facto reason to send back the nomination of a judge. If diversity is to be a institutional priority, it should be stated upfront and there should be a clear statement of the diversity being sought. It cannot be selectively and retrospectively invoked in the manner that the law minister has done.

The government’s response points to the urgent need to set up transparent norms for judicial appointments, for express conditions when seniority or diversity norms can be circumvented, and for publically available reasons for the “merit” that justifies the appointment of particular judges to the higher judiciary. Till these procedures remain opaque, judicial appointments will always be vulnerable to attack, and the independence of the judiciary will be under threat from within and without.

The rather weak reasons from the government also raise ominous concerns regarding governmental attack on the independence of the judiciary. It appears that government is trying to make Justice Joseph pay the price for the judgment striking down president’s rule in Uttarakhand while sending a message to all judges across the country, that judges who rule against the government in important matters will face consequences.

The history of the judiciary is replete with examples of instances where the independence of the judiciary has been protected by the court and a succession of Chief Justices of India against such interference by the government. Very often wiser counsel prevailed, and the executive interference with the independence of the judiciary was repelled. Exceptions include the supercessions of 1973 and 1977, which were attempts to browbeat an independent judiciary, and create a cadre of “committed judges”. The capitulation of the Court to Indira Gandhi’s government during the Emergency was a legacy of these interventions, and should caution us about the dangers of executive interference in judicial appointments. This continuing threat was nipped finally by the Second Judges case by the creation of collegium system. While there has been some valid criticism of the collegium system, it currently stands as the binding law of the land.

In June 2014, when Gopal Subramanium, a former Solicitor General of India, was unilaterally hived off from a composite list of four names forwarded by the then collegium, Chief Justice R M Lodha said: “Segregating his name was done unilaterally by the Executive without my knowledge and concurrence which was not proper. This is one subject, which is non-negotiable. At no cost the independence of the judiciary will be allowed to be compromised. I will not hold my office if I feel that the independence of the institution of the judiciary has been compromised.” All the other appointees including currently serving Justices A K Goel, Arun Mishra and R F Nariman were sworn in only after Gopal Subramanium categorically withdrew his consent.

The manner and context in which the collegium’s recommendation has been treated by the executive raises a real and immediate threat for the independence of the judiciary. Constitutionalism is developed and maintained by all constitutional authorities acting in accordance with the letter and spirit of the Constitution. Every act in contravention of the Constitution detracts and chips away at the foundations of our constitutional republic. At important junctures on our constitutional journey, when the executive or the legislature has attempted to thwart the independence of the judiciary or the basic structure of the Constitution, the Court has risen to the occasion. While the Court is not infallible, its authority and that of the Constitution will survive only if it remains independent. For that, nothing less than an immediate and categorical reiteration of the recommendation is necessary and holding off on the swearing-in of Supreme Court Justice-designate Indu Malhotra is required. It has been a few decades since the Supreme Court faced such a powerful government. It is time for the court to confront the ghosts of decisions past and lay to rest the burden of having buckled the last time around.