Concerns Over the Appointment of Supreme Court Judges

Rohinton Nariman, Ex- Supreme Court Justice, Expresses His Views

Newsreel Asia Insight #199
April 22, 2024

Justice Rohinton Nariman, a respected former judge of the Supreme Court of India, voiced concerns about the system for appointing judges. In a speech, he drew attention to issues with how the system, which on paper appears sound, is not functioning as intended. Nariman expressed that while the framework for appointing judges is not inherently flawed, its implementation has been lacking.

According to Nariman, the government’s approach to appointing judges has raised questions about the efficiency and fairness of the process, as reported by Live Law. He pointed out that the government has delayed or stalled the appointments of certain judges, suggesting that political motives might be at play.

A notable case he mentioned was the government’s failure in 2019 to elevate Justice Akil Kureshi to the Supreme Court. This, according to Nariman, reflected a broader failure in the system to recognise and promote talent based on merit and independence.

Justice Kureshi’s career includes rulings that have not always aligned with government interests, leading to speculation that his judicial independence played a role in the government’s reluctance to elevate him. Justice Kureshi has made rulings that challenged government policies, such as his judgment in the Sohrabuddin Sheikh encounter case, which raised questions about official conduct.

“The system is not throwing in the best. Which is why the system didn’t bring in people like Justice Kureshi. Apparently, when you’re too good, if you’re independent, you’re out of the system,” Nariman remarked.

Nariman also provided historical context to the judiciary’s journey, tracing the evolution of the appointment system in the United States, the United Kingdom and India. He noted that India’s system worked well until it suffered a significant setback following the landmark Kesavananda Bharati judgment. This 1973 Supreme Court decision upheld the basic structure of the Indian Constitution, limiting the government’s power to amend fundamental parts of the constitution.

The Kesavananda case originated from a petition by Kesavananda Bharati, the head of a religious mutt (monastery) in Kerala. He challenged land reform laws enacted by the Kerala state government, arguing that they infringed on his fundamental rights to property and religion. However, the case evolved into a broader legal question about the limits of Parliament’s power to amend the Indian Constitution.

The central question was whether Parliament had unrestricted power to amend any part of the Constitution, including the fundamental rights enshrined in it. This was significant because prior to this judgment, there were conflicting views on the scope of Parliament’s amending powers.

However, Nariman explained that the real turning point came during India’s Emergency period in 1975, when Prime Minister Indira Gandhi suspended civil liberties and implemented sweeping changes that affected the judiciary’s independence. This was the second blow to the judiciary’s autonomy, with the third occurring when 16 judges known for their courage and independence, akin to Justice Kureshi, were transferred all at once, during the Emergency. The Supreme Court later upheld these transfers, granting the government considerable influence over the judiciary.

Justice Nariman’s comments were made at an event organized by the juniors of the late S. Govind Swaninadhan, a former Advocate General of Tamil Nadu, to present the SGS Award for Ethics in the Legal Profession to Justice Akil Kureshi, who served as Chief Justice of the Rajasthan and Tripura High Courts.