The National Judicial Appointments Commission Bill, which was being heralded as the silver bullet for corruption in the higher judiciary, had a smooth passage through both Houses of Parliament. The Members of the Lok Sabha gave it their unanimous support. In the Rajya Sabha, only one member, eminent lawyer Ram Jethmalani, questioned the provisions of the proposed legislation and abstained from voting.
Though the Commission will get the mandatory constitutional status only after a second piece of legislation, the Constitution (121st Amendment) Bill, has been passed, the government has already declared it a landmark in India’s constitutional history. Finance Minister Arun Jaitley went so far as to claim that it had restored the spirit of the constitution.
But is it? Will this new system of appointing judges really usher in much-needed change? If one scratches the surface, it doesn't seem so.
In the recent past, several instances of corruption in the judiciary are thought to have been the result of the so-called collegium system by which judges were appointed to the High Courts and the Supreme Court. Under this system, the Chief Justice of India and four most senior judges of the Supreme Court had the prerogative of deciding appointments to the upper courts. This led to questions about the fairness of judges appointing themselves. Since the collegium was not bound to disclose how it went about its task, many critics, quite justifiably, described it as a cabal.
How it works
With this passage of the National Judicial Appointments Commission Bill, judges will now be selected by a six-member National Judicial Appointments Commission. Its members will be the Chief Justice of India, the two most senior Supreme Court judges, the Union Law Minister, and two “eminent persons” who will be appointed by mutual agreement between the Chief Justice, the Prime Minister and the Leader of the Opposition in Parliament. A nomination can be discarded if two members veto it.
The government has said that the judiciary, which has three members on the Commission, still enjoys primacy in the appointment process. But in the Rajya Sabha, Jaitley attempted to explain the scope of the bill by invoking Article 124 (2) of the Constitution, according to which Supreme Court judges are to be appointed by the President in consultation with the Chief Justice and other judges. However, this is how Jaitley chose to interpret it: "In simple English, this means that the President and government will appoint judges to the Supreme Court.”
His pithy statement reflects the most fundamental flaw in the new selection process. If earlier it was the judiciary alone calling the shots, the scales have been tilted in favour of the executive. That’s why it isn’t the least bit surprising that all political parties set aside their differences to ensure the smoothest of passages for the bill. The reason is clear. Though the bill lays down no objective criteria for deciding the “eminent persons” on the panel, it is obvious that the choice will be political ones. The possibility of the Law Minister and one of these eminent members joining hands to hijack the process isn’t improbable.
In the run-up to vote in Parliament, the government had gone to great lengths to trumpet the Bill as a beacon of transparency and accountability in judicial appointments. In reality, it pays only lip service to these two essential values of public life. It mentions amorphous terms like “merit”, “ability” and “other criteria” as criteria for making appointments. These are neither new, nor substantive. Under the collegium system, in many cases, these same criteria were just bywords for nepotism and crafty manoeuvring. Besides, there is no provision mandating even partial disclosure of the decision-making process. On previous occasions, the courts have stonewalled every move when the Right to Information Act has been invoked to seek such information about particular judicial candidates. In the absence of any specific provision, how can one be sure that the Commission will not adopt the same strategy?
Judicial independence in peril
One is left in little doubt that this Bill has been devised by the executive to arrogate to itself the ultimate power in deciding who will make it to the bench. In the process, it has severely jeopardised judicial independence. Ironically, this was exactly the reason the Supreme Court evolved the collegium system: it was put into place in 1993 by the judiciary to safeguard itself from the onslaughts of the executive.
However, there are also reasons to be optimistic. For one, the Bill cannot be brought into force without an amendment to the Constitution. This would require ratification by a minimum of 15 states, and the political consensus to achieve that wouldn’t be an easy task for the government.
In addition, senior lawyer Fali Nariman has said that he will challenge its constitutionality in the Supreme Court, for the independence of the judiciary could not be compromised at any cost. He had been a member of the panel consulted by the government before it framed the bill.
A few days ago, constitution scholar Upendra Baxi, who was on the same panel as Nariman, argued in the Indian Express that since this Bill would inevitably end up affecting the inalienable, “basic structure” of the Constitution, the government should seek an advisory opinion on a draft legislation from the Supreme Court. This would have provided it means to verify the “constitutional compatibility” of the bill before putting it before Parliament. Baxi’s contention was prescient, since the Bill will now end up before the Supreme Court.
The executive’s takeover of the judiciary isn’t imminent.
Saurav Datta manages SCOIblog , an initiative of Vidhi Centre for Legal Policy, Delhi.
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Though the Commission will get the mandatory constitutional status only after a second piece of legislation, the Constitution (121st Amendment) Bill, has been passed, the government has already declared it a landmark in India’s constitutional history. Finance Minister Arun Jaitley went so far as to claim that it had restored the spirit of the constitution.
But is it? Will this new system of appointing judges really usher in much-needed change? If one scratches the surface, it doesn't seem so.
In the recent past, several instances of corruption in the judiciary are thought to have been the result of the so-called collegium system by which judges were appointed to the High Courts and the Supreme Court. Under this system, the Chief Justice of India and four most senior judges of the Supreme Court had the prerogative of deciding appointments to the upper courts. This led to questions about the fairness of judges appointing themselves. Since the collegium was not bound to disclose how it went about its task, many critics, quite justifiably, described it as a cabal.
How it works
With this passage of the National Judicial Appointments Commission Bill, judges will now be selected by a six-member National Judicial Appointments Commission. Its members will be the Chief Justice of India, the two most senior Supreme Court judges, the Union Law Minister, and two “eminent persons” who will be appointed by mutual agreement between the Chief Justice, the Prime Minister and the Leader of the Opposition in Parliament. A nomination can be discarded if two members veto it.
The government has said that the judiciary, which has three members on the Commission, still enjoys primacy in the appointment process. But in the Rajya Sabha, Jaitley attempted to explain the scope of the bill by invoking Article 124 (2) of the Constitution, according to which Supreme Court judges are to be appointed by the President in consultation with the Chief Justice and other judges. However, this is how Jaitley chose to interpret it: "In simple English, this means that the President and government will appoint judges to the Supreme Court.”
His pithy statement reflects the most fundamental flaw in the new selection process. If earlier it was the judiciary alone calling the shots, the scales have been tilted in favour of the executive. That’s why it isn’t the least bit surprising that all political parties set aside their differences to ensure the smoothest of passages for the bill. The reason is clear. Though the bill lays down no objective criteria for deciding the “eminent persons” on the panel, it is obvious that the choice will be political ones. The possibility of the Law Minister and one of these eminent members joining hands to hijack the process isn’t improbable.
In the run-up to vote in Parliament, the government had gone to great lengths to trumpet the Bill as a beacon of transparency and accountability in judicial appointments. In reality, it pays only lip service to these two essential values of public life. It mentions amorphous terms like “merit”, “ability” and “other criteria” as criteria for making appointments. These are neither new, nor substantive. Under the collegium system, in many cases, these same criteria were just bywords for nepotism and crafty manoeuvring. Besides, there is no provision mandating even partial disclosure of the decision-making process. On previous occasions, the courts have stonewalled every move when the Right to Information Act has been invoked to seek such information about particular judicial candidates. In the absence of any specific provision, how can one be sure that the Commission will not adopt the same strategy?
Judicial independence in peril
One is left in little doubt that this Bill has been devised by the executive to arrogate to itself the ultimate power in deciding who will make it to the bench. In the process, it has severely jeopardised judicial independence. Ironically, this was exactly the reason the Supreme Court evolved the collegium system: it was put into place in 1993 by the judiciary to safeguard itself from the onslaughts of the executive.
However, there are also reasons to be optimistic. For one, the Bill cannot be brought into force without an amendment to the Constitution. This would require ratification by a minimum of 15 states, and the political consensus to achieve that wouldn’t be an easy task for the government.
In addition, senior lawyer Fali Nariman has said that he will challenge its constitutionality in the Supreme Court, for the independence of the judiciary could not be compromised at any cost. He had been a member of the panel consulted by the government before it framed the bill.
A few days ago, constitution scholar Upendra Baxi, who was on the same panel as Nariman, argued in the Indian Express that since this Bill would inevitably end up affecting the inalienable, “basic structure” of the Constitution, the government should seek an advisory opinion on a draft legislation from the Supreme Court. This would have provided it means to verify the “constitutional compatibility” of the bill before putting it before Parliament. Baxi’s contention was prescient, since the Bill will now end up before the Supreme Court.
The executive’s takeover of the judiciary isn’t imminent.
Saurav Datta manages SCOIblog , an initiative of Vidhi Centre for Legal Policy, Delhi.