New Delhi: Legal experts on Saturday gave divergent views on whether the Chief Justice of India should be involved in executive appointments with some saying the CJI's participation adds fairness in the process while others thought that he should not be in such selection committees.
The views came in the wake of Vice President Jagdeep Dhankhar wondering on Friday that how could the CJI, even by "statutory prescription", get involved in executive appointments such as that of CBI director, and said it was time to "revisit" such norms.
While noted constitutional expert and senior advocate Rakesh Dwivedi said the CJI should not be part of the selection committee relating to the appointment of CBI director and other executive appointments, senior advocate Shoeb Alam said such appointments only benefit from the participation of the CJI.
Senior advocate Gopal Sankaranarayanan said since the matter relating to the appointment of the chief election commissioner (CEC) and election commissioners under a 2023 law, which excluded the CJI from the selection panel, was pending before the Supreme Court, the vice president should not have made such a statement.
Another senior advocate Mohit Mathur said though the inclusion of CJI in the selection process was to keep it free and fair, the vice president should not have made such a statement.
"In view of the separation of judiciary from executive and legislature and that Supreme Court exercises judicial review powers, the chief justice should not be part of selection committee relating to CBI director and other executive appointments. He can be part of it if appointments are to judicial tribunals though," Dwivedi said.
Alam said, "Participation of the CJI adds fairness and impartiality to selections to key posts." He said in a democracy like ours, such appointments only benefit from the participation of the CJI. "Increasing the credibility of the process and ensuring adherence to due process, cannot be termed as judicial activism or encroachment on executive power," Alam said.
"Most of all, it contributes to ensuring a suitable appointment, especially when there is no law covering the field of appointment. As was the case for appointment of ECs (election commissioners) and CEC till recently," he said.
Sankaranarayanan said, "As the matter is sub judice, neither the vice president nor I should comment on it. He should know better". Mathur said in the selection process for CBI director, the prime minister is also involved along with the CJI. "They are constitutional posts and I don't thing any fingers should be raised on constitutional posts," he said.
Mathur said vice president is a post which has to be above all party or government lines. "Just like the president, the vice president also has to be above all kinds of biases. He (vice president) should not have made a statement of such kind," he said.
Speaking at the National Judicial Academy, Bhopal, Dhankhar had on Friday said that in his view, the 'doctrine of basic structure' has a very "debatable jurisprudential basis".
"To stir your minds, how can in a country like ours or in any democracy, by statutory prescription, Chief Justice of India participate in the selection of the CBI director," Dhankhar had asked the gathering.
"Can there be any legal rationale for it? I can appreciate that the statutory prescription took shape because the Executive of the day has yielded to a judicial verdict. But time has come to revisit. This surely does not merge with democracy. How can we involve the Chief Justice of India with any executive appointment," he had said.
The apex court is scheduled to hear on February 19 the pleas against the appointment of the chief election commissioner and election commissioners under the 2023 law.
