Refusing to quash the petition, the three-member Supreme Court bench questioned if there was any public interest involved in the issue

The Supreme Court of India has refused to quash the candidature of justice Dalveer Bhandari, the third senior-most judge of the apex court, to the International Court of Justice (ICJ). A petition was filed stating that the nomination of a sitting judge has compromised the independence of the judiciary.

PTI reported that bench of justices Altamas Kabir, J Chelameswar and Ranjan Gogoi initially wanted to outrightly dismiss the plea for quashing justice Bhandari’s nomination for ICJ, but later allowed counsel Prashant Bhushan, for the petitioner, to withdraw it, treating it as “dismissed as withdrawn”.

The bench also questioned the petitioner’s locus standi and wondered if there was any public interest involved in the issue. “What is the interest of public? He (petitioner) is not a contender so what is the public interest involved here,” the bench asked.

Adv Bhushan, however, persisted with his argument and cited the nine-judge constitution bench ruling in the Advocate-on- Record Association case, wherein it was ruled that appointment to the judiciary shall not be influenced by any executive interference. He also contented that in case Justice Bhandari fails to get elevated to the ICJ, he will have to come back and join as a judge which would impinge upon his judicial independence.

According to PTI, the bench was not impressed with the argument and said the international posts have different set of rules and it would have been more appropriate if the petitioner had questioned the legalities of the rules framed by the Government of India in nominating a person to the post. “You should have questioned the vires of the rules in choosing a person. This is purely a question connected with international and not municipal laws,” the bench remarked.

Attorney General GE Vahanvati, in his brief intervention, sought dismissal of the petition on the ground that it was frivolous and deliberately filed a day before the nomination and argued that justice Bhandari’s nomination to the ICJ was a matter of prestige to the entire country.

According to news reports, petitioner, Rahul Srivastava, a law student, in his petition had stated that, “As a matter of principle, selection of a sitting judge of the highest court of the land by the government creates a grave situation of conflict of interest and compromises the independence of the judiciary. The independence of the judiciary is part of basic structure of the Constitution of India. Selection to post like that of a judge of the ICJ, by its very nature, involves heavy lobbying on part of the government,” the petition said. “Many of the important cases dealt by a judge of this court involve the Union of India as either the petitioner/appellant or as a respondent.”

The petitioner also stated that the government in its reply to a RTI (Right to Information) query has refused to divulge any information about the selection process of justice Bhandari as nominee for ICJ.

Delhi-based RTI activist, Subhash Agrawal, had filed an RTI application with ministry of external affairs (MEA) seeking information on the rules and procedures to elect nominee made by India to the post of ICJ.

The MEA, in its reply, revealed that, “The Government of India does not recommend candidates for nomination to the ICJ. However, Government of India is at liberty to forward names of potential candidates for the consideration of Indian National groups in Permanent Court of Arbitration. However, Government of India is at liberty to forward names of potential candidates for the consideration of the Indian National Group in the Permanent Court of Arbitration.”

In another query raised by Mr Agrawal asking whether the PMO’s approval has been sought in the selection process, the ministry said that, “As the elections to the vacancy in the ICJ have only been announced in the United Nations on 19th January, and the elections would be held on 27th April, the procedure for canvassing support for the Indian candidate to the election is presently going on. Canvassing for support for the elections involves sensitive dealings with the governments of foreign countries. Our lobbying efforts and electoral strategy is essentially a confidential process.

Consequently, the process of decision making of the Government of India, if revealed even before the elections are held, might seriously compromise our ability to lobby strongly and effectively for the choice of Indian National Group.”
The selection of ICJ Judge will be held, tomorrow—27 April 2012.

The bench also pointed out that the issue of nomination was in public domain since December 2011 but the petitioner chose to approach the court only at the last hour.