By Rommel Khan and Harsh Anand
With the introduction of the Judicial Appointment Commission, the Executive seems to have paced ahead of the Judiciary in their prolonged supremacy in appointing Judges of the High Courts and the Supreme Court. With the judgement in the last of the three Judges’ case the executive seemed to have lost its rather firm grip in appointing Judges to the higher Judicial Institutions of India.
As of now, the decks for the Judicial Appointments Commission Bill which will establish a Commission with the power of appointing and transferring judges to bring down the curtains on the Collegium era, which had been in place since the Second Judges case, decided in 1993, have been cleared in the Upper House of the Indian Parliament. The Constitution (120th Amendment Bill), 2013 will establish a six-member Commission which consists of the Chief Justice of India as the ex-officio chairman of the Commission, the two senior judges of the Supreme Court besides the CJI as ex-officio members, the Union Law Minister and two eminent citizens who shall further be selected by the Prime Minister, Leader of the Opposition in the Lower House and the CJI.
The dilemma of Judicial Appointments in India has been in existence for a considerable period of its recent history. One can say that the problem was plaguing the system for a long time but it reached its peak with the appointment of Justice A.N. Ray as Chief Justice of the Supreme Court.
The office of the Chief Justice of the apex Court had so far been filled by the senior most amongst the serving judges of the Court. However, the same saw exceptions not once but twice and both the times under the same government led by Indira Gandhi known for trying to clip the wings of the Judiciary.
Thus, we see that in a six member body there are only three direct representatives of the Judiciary whose fate will now be sealed by this body while there are high chances that even if the two ‘eminent’ persons are not direct representatives of the Government the government may easily bend their decisions to its advantage considering they are to be appointed by a three member body of which two are from the Executive.
Because of the low standing with which the politicians in India are usually associated, this Bill is increasingly seen as an attempt to curtail the Independence of the Judiciary which has given a hard time to the government recently. Uproar against the bill is coming from various quarters.
The anguish of the Madras Bar Association can be sensed from these words that has compared the Bill to the patently coercive Rowlatt Act, 1919: “With unfathomable agony and pain, we are compelled to say the 120th Amendment Bill, 2013, is in the nature of British Rowlatt Act 1919 in its sweep and consequences, and would result in the denial of right to life, liberty, freedom, protection of property to the people of India and their cherished democracy.”
The Bar Association has also pointed out that the inclusion of the government in the process of appointing judges will also violate the principle of separation of the judiciary from the executive. The view that the executive should not mingle in the affairs of the judiciary is not solitary. To quote Justice Ruma Pal the present process of appointing judges is “one of the best kept secrets of the country”.
Ironically, she was herself elevated to the Supreme Court through this very method on the day of the Golden Jubilee of the Supreme Court. The Indian Express in its edition dated 5th September 2013 points to the loss of an important safety valve and one which few have noticed.
Every amendment of the Constitution which affects the Supreme Court and the High Court requires apart from the support of the two-thirds of members voting in each house and that of at least half the total membership in each house, ratification by a minimum of fourteen state legislatures. But the stringent rules of amending the Constitution as they are don’t apply in full measure to the Judicial Appointments Commission.
While the Bill when it is passed will provide for a Commission that will appoint judges to the Supreme Court and the High Courts, in the Constitution the composition of the Commission and its functions are not being provided for in the Constitution; rather, the same shall be determined by an Act of the Parliament, meaning that the law providing for the membership and the functions of the Judicial Appointment Commission will be an ordinary legislation of the Parliament that it can easily amend through a simple majority.
Thus, it will leave the scope for the parliamentarians to change the composition of the JAC to their advantage such as by adding more representatives of the Government or by reducing the number of judicial members or in fact completely dropping the judicial members from the Commission. As can easily be understood in such a situation the balance will definitely hang in the favour of the government.
The point that is to be noted here is that though the membership of the JAC is known it is not being specified in the Constitutional Amendment Bill rather it shall be laid down in an ordinary statute, the process of changing which is indeed much simpler.
Though the membership of the CJI and the two senior-most Apex Court judges in the JAC will have statutory force in the present system, it will remain entirely in the clutches of the Government who might drop them at will. Now, this tilts the balance in favour of the political class. In this regard the fears of those who believe in Judicial Independence are not unfounded.
Opposing Unlawful Appointments
During the appointment of P.J. Thomas as CVC despite the Leader of Opposition, Sushma Swaraj’s dissent, the Committee (consisting of the Prime Minister, Home Minister besides the Leader of Opposition) went ahead with the appointment which was later struck down by the Apex Court.
If the respective representation of both the judiciary and the Executive in this new Commission is clearly specified in the Constitution then any alteration of the same will have to attain not only the required majority in the Parliament but also the majority support of half of the state legislatures as well.
Now the same might well be a task for the Government because for quite some time now successive governments at the Centre have been the result of coalition or an alliance among various national and state political parties some of which might not support the Bill when it comes to the floor of their state legislatures.
This means that even if the government is able to secure the required majority in the Parliament to change the constitutional membership of the JAC, assuming it is given one, it will be very difficult for it to get the approval of states because the very parties which have formed the government in the centre might not give their green signal in the state legislative assemblies.
The situation becomes even more bleak for the government if some of its supporting parties reject the Bill in the state legislative assemblies and the opposing parties dismiss the Bill as unacceptable in their home turfs. But for the government to face so much of hassle it needs to give constitutional status to the membership of judicial representatives in the JAC which it has clearly and skilfully avoided so far and one fine day might just send the membership of representatives from the Judiciary for a toss.
Not to mention the fact that the judges who are members of this Commission may not be able to work fearlessly if they are conscious of this fact. In these circumstances they might very well get manipulated easily and it will be very easy for the government to mould or influence the opinion of a judge in its favour.
The independence of the judiciary shall be heavily compromised as the judges might well be in the fear of keeping their membership intact. This can lead to a situation where the judicial members of the Judicial Appointments Commission will become submissive to the commands of their counterparts from the Executive.
In such a scenario, the status of Chief Justice of India who is set to head the Commission will be reduced to a mere titular head though the same might not be obvious to the eye. This is so because the very membership of the chair of the Commission is through a statute and he might not even be a member let alone the chairman of the six-member body if the Government so wishes one day.
If the statute is changed to this effect it might be a very drastic change but bringing this change is not herculean for the executive by any means given the majority it commands in the legislature and who knows as a result of this accession the judges might just tow the line of the Executive.
Therefore, the present Bill not only presents a serious threat to the independence of the judiciary as the government gets ready for an overhaul of the appointment system of judges but also leaves the fate of the membership of the judicial members in the body undetermined and hanging in the air.
This is a predicament of sorts which the parliamentarians need to address. The reason being that if the same is not done then the judges may go to the extent of accepting favours from the government to approve the appointment of a judge the government wants.
In this way, the ideal that is sought to be preserved that judges should work in the absence of any fear or favour from the government will be left in peril. Although, the Union Cabinet has agreed to give Constitutional Status to JAC and its members, the citizenry has been kept in the dark as to whether the Government has made any move to amend the draft bill accordingly.
Now, the government in wanting the JAC, is trying to implement what already exists in England & Wales which has a body with a similar name. Now, in the case of the JAC existing in England and Wales, it consists of 15 members out of which none are from the political background. Also, it is to be noted that in this case, there is an inclusion of distinguished members of the public (6 lay people).
Now, when compared with the proposed JAC in India, we can see that this is an attempt by the government to restore some of its lost powers. This feature exists in the Venezuelan constitution too. Article 270 of the Venezuelan constitution talks about almost the same thing which the Parliament is trying to implement. Then, as was stated by Justice Shah, the South African constitution also makes a provision for the appointment via the Judicial Service Commission.
To conclude, one can say that since the Executive is trying to implement a system which is already in existence in England it would be better if we follow a system which has been tried and tested instead of developing one of our own.
The English system follows the principle of removing any sort of political influence from the judicial sphere, thereby nullifying any sort of political involvement and undue influence.
To cement the position of the Judicial representatives in the JAC, the model which forms the base of the Election Commission of India should be brought into picture so that the JAC is a constitutional non-partisan body and the day-to-day workings of the commission is insulated from the Government.
Also, this would provide the JAC its much needed firmness. The Government should remind itself that it cannot be a judge in its own cause and that the exercise of political power over the higher public institutions is not a welcome step in a country like India where the apex Court has categorically stated that the independence of the Judiciary is a part of the un-amendable basic provision of the Constitution, the law of the laws.