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

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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 Security Act (MISA). The SC's mettle as the final guardian of fundamental rights came to be tested in ADM Jabalpur case (1976).
Justices Ray, M H Beg, Y V Chandrachud and P N Bhagwati declared that during Emergency, there was no remedy for violations of fundamental rights by the government. Justice H R Khanna penned a powerful dissent and got punished with supersession. When Justice Ray retired on January 28, 1977, Beg was appointed as CJI. Justice Khanna resigned.
The government came up with a lame excuse that Justice Khanna would have had a short tenure of five months as CJI followed by Justice Beg's eight months as CJI. So, Justice Beg got 13 months tenure and will be remembered as the last of the supersessions for CJI's post.
Post-Emergency, the Janata Party government reverted to the 'seniority' convention. But PM Morarji Desai was accused of nepotism and supersession by appointing his relative, Justice D A Desai of Gujarat HC, as SC judge, superseding then HC CJ B J Diwan. The Supreme Court Bar Association had passed a resolution condemning Desai's appointment and decided not to attend his swearing-in ceremony.
The SC's history is replete with Desai-type supersessions in appointments to the SC, since 1950 till today. But no government after Emergency has flouted the seniority convention for the last 43 years since the last aberration in appointment of Justice Beg as CJI in 1977.

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