Apex court divided on examining government appointments


New Delhi : Adding to the raging debate on judicial activism, a Supreme Court bench Friday appeared divided on examining a plea challenging the executive’s powers to appoint officials.

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The difference of opinion emerged in a bench of Justices H.K. Sema and Markandey Katju during hearing of a petition that apprehended that former Gujarat Director General of Police (DGP) P.C. Pandey could be reappointed as the police chief of the state.

While Justice Katju fiercely opposed the plea challenging Pandey’s likely appointment as Gujarat police chief, Justice Sema asked the petitioner, social activist Teesta Setalvad, to file an additional affidavit in support of her contentions.

During last month’s Gujarat assembly elections, Pandey was shifted as the DGP on the orders of the Election Commission following complaints about his alleged lack of political neutrality and bias in favour of the Narendra Modi government.

Pandey was made director of the state’s Anti-Corruption Bureau. The petition by Citizens for Peace and Justice, headed by Setalvad, apprehended that Pandey could be reappointed as the state police chief.

Earlier, Setalvad moved the apex court alleging Pandey’s role in shielding perpetrators of the 2002 statewide communal carnage.

As the petition came up for hearing Friday, state government counsel Hemantika Wahi told the court Pandey had already been shifted out from the DGP’s post.

At this, Setalvad’s counsel Aparna Bhat contended that following the assembly polls a new government has been sworn in and there was strong possibility of Pandey being brought back as the DGP.

She wanted the court to extract an undertaking from the Gujarat government that it would not reappoint Pandey.

To this, a visibly infuriated Justice Katju retorted: “What has the judiciary to do with the appointment of the state’s DGP? Is the judiciary meant for regulating the appointments by the government? Do you challenge the appointment of the prime minister?”

“It’s the exclusive jurisdiction of a chief minister to appoint anybody to a post. You want the judiciary to take over the function of the government?” Justice Katju asked.

“In the appointment of the chief secretary or home secretary or even a district magistrate, it’s the state government which has to decide,” he said.

Rattled by the judge’s observations, Bhat said there were many complaints pending against Pandey. At this Justice Katju shot back: “One may not be a desirable person, but that does not mean the judiciary will interfere in appointments by the government.”

Justice Katju pointed out that Pandey was no longer the police chief and so the plea for his removal has already become meaningless and liable to be dismissed.

Faced with the court’s inclination to dismiss the petition, Bhat wanted to be given the “liberty” to approach it again in case Pandey is reappointed.

“What liberty? What type of Citizens for Peace and Justice (the name of the petitioner’s organisation) are you?” Justice Katju asked, adding, “Had you sought our permission before fling this petition?”

But despite Justice Katju’s observations, which indicated his aversion to take up the petition for elaborate hearing, Justice Sema, the senior judge on the bench, decided against dismissing it and adjourned the matter for two weeks for further hearing. He asked the petitioner to file an additional affidavit in support of her contentions.

On Dec 6 last year, as part of another bench headed by Justice A.K. Mathur, Justice Katju had delivered a significant ruling on judicial activism and cautioned the judiciary against encroaching upon the domains of the legislature and the executive.

The ruling had triggered a fierce debate on judicial overreach.