The Politics Of Judicial Appointments

It is perfectly possible to pervert the Constitution, without changing its form, by merely changing the form of the administration and to make it inconsistent [with] and oppose to the spirit of the Constitution.” –Dr BR Ambedkar

Two remarkable judges delivered judgments which were path-breaking, but both paid the price for courage under the fire of the Executive. One of the judges was transferred to the Madras High Court. The second judge is now being objected to by the government to be brought to the Supreme Court. Justice Rajiv Shakdher delivered the judgment in the Priya Pillai (2015) case, which broke far more ground than the Supreme Court’s decision in Maneka Gandhi (1978). It was held that human rights activist Ms Pillai’s right to travel abroad could not be curtailed by a government whose views were diagonally opposed to hers.

The second judgment was delivered by Justice KM Joseph, who in 2016, struck down the hastily imposed President’s Rule in Uttarakhand. Echoing the sentiment of the Supreme Court’s SR Bommai (1994) judgment, Justice Joseph wrote:

“The Government, when it takes action under Article 356, is expected to be completely non-partisan but the centre had imposed President’s Rule contrary to the law laid down by the Apex Court.”

Unlike many judgments, which were delivered long after the event and reduced to mere pious sentiment, these two judgments came in with the requisite expedition to grant meaningful relief. Governments are never pleased with this. They would rather have the judgments come long after the fruits of political expediency are reaped.

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