Legal experts are divided over the Chief Justice of India’s involvement in executive appointments. The debate intensified after Vice President Jagdeep Dhankhar raised concerns about the CJI’s role in selecting officials like the CBI director. Dhankhar suggested it may be time to reconsider such practices.
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NEW DELHI: Legal experts Today (Feb 15) expressed different opinions on whether the Chief Justice of India (CJI) should be involved in executive appointments. Some experts believe that the CJI’s participation makes the process fairer, while others think that he should not be part of selection committees for such appointments.
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Senior advocate and constitutional expert Rakesh Dwivedi stated that the CJI should not be included in committees for executive appointments such as the CBI director.
However, senior advocate Shoeb Alam argued that having the CJI in these appointments only improves the fairness of the process.
Senior advocate Gopal Sankaranarayanan pointed out that since the Supreme Court is currently hearing a case related to the appointment of the chief election commissioner (CEC) and election commissioners under a 2023 law—which removed the CJI from the selection panel—the vice president should not have made such a comment.
Another senior advocate, Mohit Mathur, acknowledged that the inclusion of the CJI in the selection process is meant to keep it free and fair. However, he also suggested that the vice president should not have made such a statement.
“In view of 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, however, disagreed and said,
“Participation of the CJI adds fairness and impartiality to selections to key posts.”
He emphasized that in a democracy like India, the presence of the CJI in such appointments is beneficial.
“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 added.
Sankaranarayanan commented,
“As the matter is sub judice, neither the vice president nor I should comment on it. He should know better.”
Mathur noted that in the selection process for the CBI director, the prime minister is also involved along with the CJI.
“They are constitutional posts and I don’t think any fingers should be raised on constitutional posts,”
-he said.
He further stated that the vice president should remain neutral and not align with any political party or government.
“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,”
-Mathur said.
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Vice President Dhankhar, while speaking at the National Judicial Academy in Bhopal on Friday, also commented on the ‘doctrine of basic structure,’ saying that it 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 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 added.
The Supreme Court is set to hear on February 19 the petitions challenging the appointment process of the chief election commissioner and election commissioners under the 2023 law.
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