Plea against Chief Justice Balakrishnan could open Pandora’s box

By Rana Ajit, IANS

New Delhi : Is the Supreme Court chary of hearing a petition questioning Chief Justice K.G. Balakrishnan’s decision to confirm the services of a Madras High Court judge?


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If repeated postponements in the last few months is any indication, the apex court surely appears a trifle wary of the petition, says former law minister Shanti Bhushan and several other jurists.

Law experts say the plea against Balakrishnan’s decision could open a Pandora’s box on judicial appointments.

The petition filed by lawyer Kamini Jaiswal first came up for hearing July 30 last year. It questioned the chief justice’s February 2007 decision to confirm Justice Ashok Kumar’s services in the Madras High Court without consulting the apex court collegium comprising its two senior-most judges.

Taking note of the serious allegation, a bench of Justice Arijit Pasayat sought from the union government an elaborate affidavit, detailing the exact number of high court judges made permanent since 1999 on successive chief justices’ recommendations alone and on those endorsed by the collegium.

The government in its affidavit told the court that a total of 351 additional judges of various high courts were made permanent between January 1999 and 2007 by successive chief justices and in no case did the chief justice ever consult the collegium.

The petition against Balakrishnan’s decision was listed for next hearing Sep 17 last year. But the bench is yet to hear it a second time.

It could not be taken up Sep 17 as the government failed to file its affidavit within the stipulated deadline of Sep 10, said Supreme Court lawyer Prashant Bhushan.

The government eventually filed its affidavit during the December 2007 winter vacations and the matter was listed for hearing Jan 7, 2008.

“But for some unknown reason, the slated date of Jan 7 was deleted from the apex court’s list of business and the matter was listed for hearing Jan 17. But it was deleted again to be slated for Feb 1, then Feb 15 and now it has been slated for March 2,” said Prashant Bhushan.

“We are keeping our fingers crossed over the date when the matter will actually be heard,” he said.

Law experts say the case has cast a cloud on the decisions of at least eight former chief justices since the tenure of former chief justice A.S. Anand, who headed the country’s judiciary between October 1998 and November 2001.

Senior lawyer Rajeev Dhawan said: “Though not all the 351 cases of judicial appointments could be reopened, the government’s affidavit has certainly rendered questionable the decisions of so many former chief justices as consultation with the apex court collegium is mandatory for chief justices in making judicial appointments and here the proper procedure of judicial appointment was no followed.”

Other former chief justices whose decisions have been rendered questionable include Justice S.P. Bharucha, Justice B.N. Kirpal, Justice G.B. Pattnaik, Justice V.N. Khare, Justice S. Rajendra Babu, Justice K.C. Lahoti and the last chief justice Y.K. Sabharwal.

Secondly, the revelations that successive chief justices have been confirming high court judges without the mandatory consultation with the collegium have an unsettling effect on the law laid down by the apex court through three major rulings on judicial appointments.

These three rulings – those in the S.P. Gupta case of 1981, the Advocates-on-Record Association case of 1993 and the Special Presidential Reference case of 1998 – make it mandatory for the chief justice to consult the apex court’s collegium while appointing judges in high courts and the Supreme Court.

(Ajit Rana can be contacted at [email protected])

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