The 120th Amendment Bill 2013 deviates from its U.K. model in the essential requirement of freeing judicial appointments from the executive

But when politicians talk thus, or act thus without talking, it is precisely the time to watch them most carefully. Their usual plan is to invade the constitution stealthily, and then wait to see what happens. If nothing happens they go on more boldly; …..Their one and only object, now and always, is to get more power into their hands that it may be used freely for their advantage, and to the damage of everyone else. Beware of all politicians at all times, but beware of them most sharply when they talk of reforming and improving the constitution.

H. L. Mencken, in The Constitution

On October 6, 1993, the Supreme Court of India, in one stroke, became the most powerful Supreme Court in the world. It had delivered its verdict in Advocate on Record Association v. Union of India. By judicial legislation, it became the only Supreme Court which could select and appoint its own personnel. The decision was welcomed by most sections of society. It was perceived as a welcome step in securing the independence of the judiciary.

The following two decades saw the court exercising its powers with complete confidence in its independence. We have seen the court monitoring the 2G spectrum scam, tackling the mining mafia, calibrating to ensure the end of manual scavenging, and evolving principles for distribution of state largesse. It has issued scathing indictments of police atrocities. It has read benevolent drug pricing into the patents regime.

Vulnerable

Scores of such decisions have been welcomed by society at large. Yet, in the midst of this soaring public esteem, it has become vulnerable. In two decades, the societal consensus on the primacy of the Chief Justice in making judicial appointments has broken down and the voices which welcomed the decision became its vocal critics. Justice Ruma Pal, a former judge of the Supreme Court, expressed this sentiment: “The insulation of the judiciary from executive interference in the matter of appointment and transfer of judges is now almost complete. But the question remains, has this almost complete insulation achieved the object for which the constitutional interpretation was strained to an extent never witnessed before or after? In my opinion it has not.”

The Constitution (120th Amendment) Bill, 2013 has been passed by the Rajya Sabha. The aim and object of the amendment as benignly suggested is to “provide a meaningful role to the executive and judiciary to present their view points and make the participants accountable while introducing transparency in the selection processes.” The amendment creates a Judicial Appointments Commission (JAC). It is modelled on the U.K. Judicial Appointment Commission. The U.K. JAC, in contrast, expressly excludes politicians and those connected with politics from being part of the JAC. This is done in order to secure the independence of the judiciary.

The JAC Bill, 2013 unfortunately has a mathematics that is far from comfortable. The JAC has the Chief Justice of India and two seniormost judges. Then there is the Law Minister and two “eminent persons,” bringing the non-judicial component to three out of six members. The selection of eminent persons risks the taint of political appointments, given the fact that the selection is made by the Prime Minister and the Leader of the Opposition constituting a total of two, and reducing the judicial component consisting of the Chief Justice to one.

Section 4 is ominous. The JAC is vested with the power to recommend persons for appointment of the Chief Justice of India — which means the rule of seniority has been given the go-by. Every eligible senior judge will now face a direct threat to being superseded from being appointed as Chief Justice. To seek the opinion of the government and the Chief Minister of the State in the appointment process again raises the risks of political appointments — which in turn jeopardises independence.

Strangely, the composition of the JAC is not a part of the Constitution, but can be altered or modified with a simple majority in Parliament. A body with such immense powers of appointing members of the higher judiciary (enjoined constitutionally to be separate and independent) being determined and constituted by a simple majority in Parliament, does not display constitutional wisdom.

The moot question that arises from the proposed composition of the JAC and its impermanence would be whether it is in conflict with the position adopted by the majority opinion in SC Advocates on Record Association v. UOI that the independence of the judiciary is reflected by giving primacy to the opinion of the Chief Justice of India in matters of appointments and transfers. Justice Kuldip Singh, supporting the majority opinion, has stated that “the independence of the judiciary is inextricably linked and connected with the constitutional process of appointment of Judges of the higher judiciary.” A constitutional challenge is imminent and inevitable. Much will depend upon the debates in the Court as to the dangers of an encroaching executive upon the appointments process and thereby jeopardising the independence of the judiciary.

Different systems

Independence of the judiciary is sacrosanct, and any rash tinkering can tip the balance. And that can have disastrous consequences for a constitutional democracy. But equally, seeking a broader collegium on the lines of the United Kingdom Model needs a serious exploration. There are several models to choose from. The appointments procedure in the United States is far too politicised: it requires politicians to both nominate and approve appointments. The intense political manoeuvring in the U.S. system has created a phenomenon “where judges rarely oppose outcomes that are philosophically in accordance with the party which nominated and confirmed them.”

In Germany, the U.S. system of political partisanship is whittled down by the requirement of a two-thirds majority for the approval of a candidate. Therefore, the candidate must necessarily be acceptable to divergent political segments and hence the chances of political partisanship are eliminated to a great extent. South Africa’s Judicial Services Commission is highly politicised. With 15 politicians and eight lawyers, it has the ingredients necessary for the erosion of judicial independence.

The JAC of the U.K. has a clear edge to secure the independence of the judiciary as its composition is dominated by non-politicians. It is important to note that it is not the judiciary alone which wants judges to be independent. Any civilised and democratic society requires an independent judiciary. As to what is independence is a moot question. The judiciary should be independent of the executive. Of this, there is no doubt. But independence has a far wider connotation when it refers to the judiciary: judges must be free from not just the governments: judges must be independent of the parties to the dispute; of all external and internal pressures which may distort their verdicts.

Independence negotiable?

But what is surprising is that the JAC Bill, 2013, which is modelled on the U.K. model, has chosen to ignore its sine qua non, namely, freeing judicial appointments from the executive. As former British Prime Minister Gordon Brown puts it, “The government should consider relinquishing its residual role in the appointment of Judges.”

The U.K. model lays importance on judicial independence with a wider consultative mechanism, which perhaps is the answer. In stark contrast, the U.K.’s JAC has no politician nor any person even remotely involved in politics.

Yes, there is a need for a more transparent and accountable system of appointments on the basis of the U.K. JAC model.

The debate on judicial appointments in India is unfortunately veering to a situation that could leave the judiciary’s independence compromised. Few realise the necessity of an independent judiciary as much as those who are oppressed by a totalitarian state. Fatima Bhutto has seen a nation ruled by military dictators, her grandfather being hanged by a dubious judicial verdict, and her father being shot dead by the paramilitary. She is perhaps intellectually best equipped to comment on the need for an independent judiciary. She wrote: “We don’t live in a country with a free press, we don’t live in a country with an independent judiciary — or any judiciary for that matter. We have no safeguards against a violent and vindictive government.”

(Santosh Paul is an advocate of the Supreme Court of India. His book, Choosing Hammurabi — Debates on Judicial Appointments, is set for release.)

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