As Justice Khehar Takes Charge, His Term Would be Under Scrutiny

As Justice Khehar takes over as CJI, vacancies in the higher judiciary will be his challenge, writes Manoj Mitta.

When its petition seeking a probe into the Sahara-Birla payoffs came up for hearing before the Supreme Court towards the end of 2016, it seemed that Common Cause could not have hoped for a more receptive bench. For it was headed by Justice Jagdish Singh Khehar, the redoubtable judge who had authored the 2015 judgement thwarting the Modi government's ambitious move to change the system of judicial appointments.

No less than a constitutional amendment had been struck down to restore the status quo ante, in the name of preserving judicial independence. Since Modi himself figured in the Sahara-Birla diaries, it was reassuring to Common Cause that its petition was being handled by a presiding judge with such a track record of independence.

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Subject of Varying Perceptions

But as Khehar repeatedly questioned the evidentiary value of the diaries, Common Cause's counsel, Prashant Bhushan, was reduced to seeking recusal of the judge as Modi was then dealing with the process of elevating him to the office of Chief Justice of India. Khehar in turn took umbrage at the belated suggestion that his independence was compromised by the very pendency of his appointment.

Given that he was the senior-most judge, Khehar's appointment as CJI, to be sure, should have been seen as a matter of course. Yet, when his appointment came through shortly thereafter, the news did evoke a sense of relief, if not surprise. For his 2015 decision to re-establish the judiciary's primacy in judicial appointments had triggered speculation that he might be superseded by a vindictive executive. Thus, in a matter of days, Khehar was the subject of such widely disparate perceptions, depending on individual proclivities.

Also Read: Petition in SC: ‘Short-Tempered Justice Khehar Unsuitable as CJI’

Judicial Appointments Case

This might have something to do with the paradox that even among those who hailed his majority verdict in the judicial appointments case, there are several who admit that its reasoning is suspect. Take the premise offered by Khehar for holding that the amendment divesting the judiciary of primacy in the appointment of judges violated the basic structure of the Constitution.

Though the Constitution only required “consultation”, Khehar reasoned that the derogation of the judiciary’s primacy in judicial appointments eroded judicial independence, one of the inviolable basic features of the Constitution.

In a leap of logic, the judiciary's primacy in judicial appointments was also held to be part of the basic structure, a criterion introduced by the Supreme Court in 1973 for all constitutional amendments.

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Tussle with Government

The controversial nature of Khehar's verdict became more manifest as the collegium comprising the five senior-most judges of the Supreme Court failed to comply with the stipulated standard of transparency, namely, to minute the discussions preceding the selection of judges.

Instead, for the whole of the 13-month tenure of Chief Justice TS Thakur, the collegium was entangled in negotiations with the government over the drafting of a fresh memorandum of procedure (MoP) for judicial appointments.

The logjam led to over 500 vacancies remaining unfilled in the high courts as the government dragged its feet on clearing the collegium's recommendations. What was more embarrassing was the seven vacancies that accrued in the Supreme Court.

Thakur could not even send names for those vacancies despite holding four collegium meetings for the purpose in October and November. Such was the intensity of the differences within the members of the collegium behind the veil of secrecy.

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Ensuring Transparency Within the Collegium

As he takes over the reins of the Supreme Court on 4 January, Khehar will inherit this messy legacy, which can be traced, ironically, to his own 2015 judgement.

But then, to be fair, every CJI has been guilty of conducting the collegium in an opaque manner ever since it was created by the Supreme Court in 1993. It remains to be seen whether Khehar will, like his predecessors, adopt the unstated policy of swearing by transparency but remaining allergic to recording the proceedings of the collegium, lest the government gets scope to question its recommendations.

Also Read: Justice Chelameshwar Has Exposed SC Collegium As Vain, Inefficient

Decision that Raised Eyebrows

In the 67 years since the founding of the Supreme Court, Khehar is the first CJI from the Sikh community. He hit the headlines for the first time in 2009 while he was still a judge in the Punjab and Haryana high court. It was for his ruling that a Sikh girl who tweezed her eyebrows was not eligible to be admitted to a medical college under the Sikh quota.

The judgement offended liberals who felt that he placed undue emphasis on the form, “Sikhi swarup”, overlooking the erosion of the substance, the centrality of caste-less egalitarianism in the Sikh faith.

Khehar might come up with more eyebrow-raising decisions, whether on the administrative side or judicial side, while he holds the CJI's office for the next eight months.

(Manoj Mitta is the author of ‘The Fiction of Fact-Finding: Modi and Godhra’. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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