It is a unanimously held view that the rule of law and the independence of the judiciary should in no manner be compromised. It is widely perceived that the collegium system has not worked well and requires extensive reforms.

The provisions of the Constitution (120th Amendment) Bill later corrected as the Constitution (99th Amendment) Bill read with the Judicial Appointments Commission Bill, 2013 (JAC Bill), if adopted, will emasculate an independent judiciary and will pose a grave threat to the rule of law. The Constitution Amendment having been passed by the Rajya Sabha on September 5, 2013 is coming up before the Lok Sabha in the winter session.

Our Supreme Court has said “[the] Rule of Law is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. The independence of the judiciary is an essential attribute of the Rule of Law.”

The court has also observed: “In India, however, the judicial institutions, by tradition, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. … The constitutional values cannot be whittled down by calling the appointment of judges an executive act.”

The doctrine of separation of powers cannot be stretched so as to set up a mechanism which is capable of being abused by making judicial appointments completely subservient to the will of the executive.

Pernicious features

First, the composition of the JAC is the Chief Justice of India (CJI), two senior-most judges of the Supreme Court, the Law Minister, and two eminent persons selected by a panel consisting of the Prime Minister, the CJI and the Leader of the Opposition in the Lok Sabha. It can be modified or altered by Parliament by ordinary law (Article 124A). This configuration of six members is not part of the Constitution and is not constitutionally entrenched. The JAC can be ‘packed’ by pliant elements in future by the executive even by an Ordinance and the JAC can recommend non-meritorious persons even on the basis of caste, religion or loyalty to the government.

The appointment of the CJI, the CJ of High Courts, and judges of the Supreme Court and the High Courts and transfer of High Court judges are to take place on the recommendation of the JAC. Thus, a JAC can, even by a majority, recommend a junior judge of the Supreme Court to be a CJI — or even a Chief Justice or judge of the High Court can be recommended to be the CJI. Further, with six members as contemplated in the JAC, a casting vote for the CJI is essential.

Secondly, there is no provision recognising the convention that the senior-most Supreme Court judge will be appointed as the CJI (unless physically impaired) — a constitutional convention adhered to from 1950 except for the two supersessions concerning Justice A.N. Ray and Justice M.H. Beg. Such a provision will prevent lobbying and will preserve collegiality in the apex court.

Thirdly, the JAC Bill provides that the Central government will appoint the officers and employees of the Commission, making its secretariat a government department. This is the most dangerous provision. The officials and personnel of the Commission should be appointed in the same manner as those of the Supreme Court (Article 146), viz. by the CJI or such other judge or officer of the court as he may direct. If the secretariat or officers and servants of the JAC are treated as government departments, there are a hundred ways of making the JAC dysfunctional. In addition, the confidentiality and secrecy of the JAC deliberations cannot be maintained. The importance of an independent secretariat is a sine qua non for an independent and politically neutral JAC.

Fourthly, all expenses including salaries, allowances and pensions should be charged upon the Consolidated Fund of India as provided for the Supreme Court and the High Courts (Article 146 and 229). The JAC must be financially independent of executive budgetary control.

Finally and, most importantly, the criticism against the collegium system was lack of transparency, no consultations with the Bar, favouritism, the lack of a level-playing field for meritorious members of the Bar, no list of potential candidates prepared after advertisements and nominations to be put up in the public domain and lack of guidelines and criteria in the selection process. These core concepts must be incorporated in the Constitution Amendment and not left to be addressed by the Central government or the JAC. One opaque collegium need not be substituted by another, raising the apprehension that future vacancies may be shared by internal accommodations within the JAC.

The above pernicious shortcomings are ticking time-bombs which can be detonated at any time by a powerful executive having a parliamentary majority in the future — and we are looking at a future which may extend to many years.

If these flaws are removed and appropriate ancillary provisions are made in the Constitution Amendment Bill itself, the entire judicial reform can be part of the Constitution and the JAC Bill will become wholly redundant.

It is worth recalling that the provisions of the Bills were never communicated to the Bar for a robust debate, in spite of a written request by leading members of the Bar in April 2013. The two Bills were gazetted and tabled in the Rajya Sabha on August 29, 2013. On September 5, 2013, the Constitution Amendment Bill was passed in the Rajya Sabha by 131 votes in favour and a single vote by Ram Jethamalani in opposition. The JAC Bill has been referred to a parliamentary committee. This great hurry reminds one of the amendments passed during the Internal Emergency — the 39th Amendment moved on August 6, 1975, and passed on August 8, 1975; the 40th Amendment moved on May 18, 1976, and passed on May 27, 1976; the 41st Amendment moved on August 18, 1976 and passed on August 30, 1976; the 42nd Amendment moved on August 28, 1976, and passed on November 11, 1976.

Reactions to the Bill

The views of former CJI M.N. Venkatachaliah (who headed the National Commission to Review the Working of the Constitution) as reported mention that it would be dangerous if the primacy of the CJI in the appointment process was done away with — it would be against the basic structure of the Constitution. Two other former CJIs are reported to have strong reservations about the JAC being altered by a simple majority and even somebody other than the CJI being made chairperson of the JAC (Indian Express, September 6, 2013).

If the Bills in the present form are passed without eliminating the pernicious features, a serious constitutional challenge is likely to be mounted on the ground of violation of the basic structure by undermining an independent judiciary and consequently the rule of law. These are not imaginary fears. Who expected constitutional amendments which effectively emasculated judicial review being passed during the Internal Emergency after detaining all Opposition leaders, gagging the press and controlling the media and intimidating High Court judges by punitive transfers?

Modus Vivendi: possible consensus

Is a consensus possible? Dr. Rajendra Prasad in his speech in the Constituent Assembly on the eve of the adoption of the Constitution said: “We have prepared a democratic Constitution. But a successful working of democratic institutions requires in those who have to work them willingness to respect the viewpoints of others, capacity for compromise and accommodation. … After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…”

The Law Minister in his speech delivered in Hindi in the Rajya Sabha on September 5, 2013, said that Parliament had great respect for the judiciary and that the independence of the judiciary should not be impaired. There seems to be some rethinking by the government in regard to the composition of the JAC being entrenched in the Constitution.

It is a unanimously held view that the rule of law and the independence of the judiciary should in no manner be compromised. It is widely perceived that the collegium system has not worked well and requires extensive reforms.

If the amendment is passed with the pernicious flaws indicated above, it is likely to create enormous tensions between the Bar and the judiciary on the one side and the executive on the other — a bruising confrontation which could well be avoided before the coming general elections.

It is hoped that our political leadership will rise to a level of statesmanship to give substance to the prophetic words of Rajendra Prasad, and bring judicial reforms while preserving the rule of law supported by an independent judiciary.

(Anil Divan is president, Bar Association of India. anildivan@gmail.com)

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