India

Threat to the independence of the judiciary: Opposition to Nazeer’s nomination; BJP pushes back

The appointment of former Supreme Court judge S Abdul Nazeer as the Governor of Andhra Pradesh mere weeks after his retirement drew harsh criticism from the Opposition, including the Congress, which stated that such appointments were “a great diminution and a great threat to the independence of the judiciary.”

Justice (retired) Nazeer, who retired on January 4, sat on the Supreme Court benches that heard crucial and delicate matters such as the Ayodhya land title dispute and the triple talaq challenge. However, the ruling BJP downplayed the Congress’s complaint, stating that such former judges have been appointed to other positions in the past and that the Congress has a propensity to politicise every topic.

Justice (retired) Nazeer is the third judge from the five-judge bench that rendered the Ayodhya verdict to be appointed by the government after retirement. Justice Ashok Bhushan was named the chairperson of the National Company Law Appellate Tribunal in 2021, four months after his retirement, while former Chief Justice of India Ranjan Gogoi was nominated as a member of the Rajya Sabha.

Abhishek Singhvi, a senior Congress lawmaker, highlighted the late Arun Jaitley’s 2013 remarks in Rajya Sabha that “the desire for a post-retirement position influences pre-retirement decisions” and that “it poses a threat to the independence of the court…” Sunday at a press conference in response to a query on the appointment, Singhvi stated, “We are not talking about individuals… We oppose it on principle because… “As a matter of principle, we believe this is a serious danger to the judiciary’s independence.”

Anil Baluni, the chief spokesman for the BJP, dismissed the accusation, stating that the Congress had a propensity of politicising every matter. “In the past, former judges have been appointed to other offices countless times. Baluni, who is also a member of the Rajya Sabha, stated that nothing in our constitution prohibits the reappointment of retired judges.

AA Rahim, a member of the Rajya Sabha for the CPM, also questioned the nomination in a Facebook post: “The Union government’s decision to designate Justice Abdul Nazeer as a Governor was not in line with the country’s constitutional values. It is extremely unacceptable. He (Nazeer) ought to turn down the offer. The nation should not lose faith in its judicial system. Such decisions by the Modi administration are a stain on Indian democracy,” Rahim wrote on Facebook.

Justice Nazeer, who was born on January 5, 1958, was appointed to the Karnataka High Court in 2003. He was elevated to the Supreme Court in 2017. His straight elevation was defended by the Collegium as a move to include a judge from a minority group and ensure diversity on the Bench, despite the fact that he surpassed several veteran judges.

A day before he was scheduled to take the oath, his senior colleague from the Karnataka High Court, Justice HG Ramesh, declined the opportunity to become the Chief Justice of the Madras High Court. In an extraordinary letter to then-Chief Justice of India JS Khehar, Justice Ramesh said, “The Constitution of India does not provide for reservations based on religion or caste for the appointment of judges to the high court and Supreme Court.”

During his five years and ten months in the Supreme Court, Justice Nazeer was a member of multiple Benches that heard and decided important matters. Justice Nazeer was a member of the unanimous five-judge verdict that ruled the Ayodhya title dispute in favour of Hindus in the Ayodhya ruling. However, he had previously dissented against the 4:1 majority position that refused to transfer the case to a bigger bench.

The Supreme Court rejected to revisit the Ismail Farooqui decision, which concluded that praying in a mosque is not a “essential aspect” of Islam. Justice Nazeer’s dissenting opinion was the only one against this verdict. Additionally, he was a member of the minority view in the 2017 triple talaq decision, in which he held that the practise was legitimate.

Justice Nazeer was also a member of the landmark 2017 ruling that established the right to privacy as a basic right, as well as the 2021 ruling that denied telecom companies’ requests for a recalculation of the AGR fees required by the government. Just two days before his retirement, he was part of the verdict that upheld the Centre’s controversial demonetisation move, and he was also a member of the Constitution Bench that ruled that ministers and lawmakers cannot be subjected to extra constraints not mentioned in Article 19(2).

In December 2021, while a sitting judge of the Supreme Court, Justice Nazeer addressed the 16th National Council conference of the Akhil Bharatiya Adhivakta Parishad, an organisation of lawyers linked with the Rashtriya Swayamsevak Sangh, and lectured on “Decolonisation of the Indian Legal System.”

ā€” With inputs from ENS, New Delhi

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