Should The ‘Judges Cases’ Be Revisited?

The word ‘consultation’ is a neutral term that the framers of the Constitution believed would enable the judiciary and executive to form a consensus on the merits of each appointment. The process of appointment was uncontroversial until three Judges who had pronounced judgments in the Kesavananda Bharati case, which were not looked upon favourably by the government of the day, were superseded by Justice AN Ray in 1973 for the post of the Chief Justice of India — this marked the commencement of a struggle for primacy between the executive and the judiciary which has barely abated over the years. The appointment of Justice AN Ray as the Chief Justice of India over three of the most senior Judges of the Supreme Court was followed in quick succession by what can only be described as steps to curtail the independence of the judiciary. This included using transfers as a stick to come down heavily on Judges who did not conform to the populist policies of the Government, as well as the practice of appointing additional Judges in an effort to place their decisions under the scanner before they were confirmed.