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Appointment of CJIs through supersessions, a sin never repeated after period of Emergency


Indira Gandhi got elected to Lok Sabha from Rae Bareli constituency in 1971 defeating Raj Narain by over 1.1 lakh votes. Her party secured 352 of 518 seats. Narain challenged her election in Allahabad High Court. The case dragged on for four years.
On June 12, 1975, HC judge J M L Sinha set aside then PM Indira Gandhi's election finding her guilty of corrupt practices. She sought the advice of renowned lawyer Nani Palkhivala, who had previously bloodied her government's nose in the Supreme Court in three important cases – privy purses, bank nationalisation (both 1970) and Keshavananda Bharti (1973).
Palkhivala found gaping holes in the HC verdict. He advised Indira that there was no reason for her to step down from office pending hearing of the appeal in the SC. He argued Indira's case before vacation judge V R Krishna Iyer. On June 24, 1975, Justice Iyer allowed her to continue as PM but without the right to vote. Indira felt humiliated to continue as PM on the crutches of a judicial order, that too one which threatened to cloud her authority as PM. Next day, she declared Emergency. Appalled by the decision, Palkhivala recused himself from the case.
The Seventies were a tumultuous time for the SC. The government believed that it being the appointing authority, the judges should stay beholden to it. It wanted committed judges. But a string of adverse judgments made it seethe with anger. After the Keshavananda Bharti judgment in April 1973, the government decided to hit back at the 'confrontationists' among SC judges.
From 1950 till 1973, CJIs were appointed in strict adherence to the 'seniority rule'. After the retirement of CJI S M Sikri, the Indira government catapulted A N Ray over three senior judges – J M Shelat, K S Hegde and A N Grover – to the CJI's post. The three self-respecting men resigned.
A pubic outcry followed. In Parliament, the government defended the decision, not through then law minister H R Gokhale but through steel and mines minister and Communist-turned-Congressman S Mohan Kumaramangalam, a friend of Indira from their college days in London.
On May 2, 1973, Kumaramangalam told Parliament, "Certainly, we as a government have a duty to take (into consideration) the philosophy and outlook of the judge in coming to the conclusion whether he should or should not lead the Supreme Court at this time." It was a time when ideological compatibility of judges with the Congress government carried more weight for their appointment as SC judges.
In the normal course, Justice Ray would not have become CJI. Supersession of three judges gave CJI Ray a tenure of 45 months, during which 10 judges were appointed to the SC. Notable among them were P N Bhagwati and V R Krishna Iyer, who again was catapulted from the Law Commission to the SC mainly because he was a communist and a close friend of Kumaramangalam. Justice R S Sarkaria became the first Sikh judge in the SC, thanks to fervent lobbying by Congress leader Zail Singh.
Why was Justice Ray rewarded with the CJI's post? He was the sole supporter of the government view in the bank nationalisation as well as privy purses cases. He also took the government's view in the Keshavananda Bharti case. Having rewarded him, the government wanted review of the basic structure doctrine propounded by a 7-6 majority in the Bharti case. CJI Ray set up a 13-judge bench to review it. But Palkhivala put a spoke in the plan. His illuminating arguments saw the majority of the bench finding that the review was unnecessary. Justice Ray dissolved the bench three days later in November 1975.
During the Emergency, some HCs showed spine and entertained habeas corpus petitions against detentions under the Maintenance of Internal SecuritRead More – Source

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