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Opinion » Comment

Updated: September 9, 2013 02:17 IST

No better judge of this government

Arun Mohan Sukumar
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Illustration: Satwik Gade
The Hindu Illustration: Satwik Gade

Passing a constitutional amendment to overhaul the judicial appointments process without proper deliberation in Parliament reflects the UPA’s eagerness to see a pliant Supreme Court

One late evening, on March 9, 1937, thousands of Americans turned their radios on to hear an unusual request from their President: help me “pack the Supreme Court” with judges who will rule in my favour. The United States had been ravaged by the Great Depression, and Franklin D. Roosevelt had a plan to save its economy. But the “New Deal,” as he called it, comprised a series of welfare legislation — designed to raise the minimum wage, enhance social security, and provide subsidies to American farmers — and President Roosevelt needed a pliant Court that would not strike it down. So he mooted the Judicial Procedures Reform Bill that would “retire” many of the sitting Supreme Court judges and replace them with appointees inclined to see the President’s actions in a kinder light. While Roosevelt’s intentions were noble, the public and the U.S. Congress saw right through his appeal — whatever the objective, the independence of the judiciary could not be compromised. Closer home, the United Progressive Alliance (UPA) has embarked on a similar, dangerous mission to clean up the mess it has left behind and protect its legacy at the cost of the Supreme Court’s credibility. Only this time, it may succeed.

On Thursday, the Rajya Sabha passed the Constitution (99th Amendment) Bill, 2013, which scraps the collegium system of appointments to the higher judiciary and replaces it with a Judicial Appointments Commission (JAC). The collegium is a small, powerful and unaccountable clique of Supreme Court judges led by the Chief Justice. This system was the creation of the Supreme Court itself, made possible through a liberal interpretation of Article 124 of the Constitution, which will now be amended.

Uncertainty over balance

The JAC, its proposed alternative, will consist of three Supreme Court judges, the Union Law Minister, the Law Secretary as its Convenor, and two “eminent persons” appointed by a body comprising the Prime Minister, the Leader of the Opposition and the Chief Justice of India.

Even assuming this set-up is an improvement from the collegium system, there is no certainty the commission’s membership will always strike a fine balance between the executive and the judiciary. The government can subsequently change the JAC’s structure, and decide who gets to appoint Supreme Court or High Court judges. All it needs is a simple majority in Parliament, because the JAC Bill, unlike the Constitution Amendment Bill, would be ordinary law. The new, “improved” system for judicial appointments will be put in place through a constitutional amendment, but the critical components of that system will be fleshed out by normal legislation, subject to the whims and fancies of the executive.

Hardly had the Union Cabinet decided the composition of the JAC on August 23 than it rushed to clear the constitutional amendment in Parliament. The government knows that if the Amendment is in place, there is no option for Parliament but to pass the JAC Bill at the earliest. Otherwise, as the Leader of the Opposition in the Rajya Sabha, Arun Jaitley, acknowledged during last week’s debate, there will be a “constitutional hiatus,” with no mechanism in place to appoint Supreme Court/High Court judges. Union Minister of Law and Justice Kapil Sibal cleverly refused to withdraw the Amendment Bill and refer it to the Standing Committee, knowing the Bharatiya Janata Party (BJP) had no option but to walk out in protest. The BJP had painted itself into a corner, given its in-principle support to the JAC, and its own initiative to pass similar legislation during the National Democratic Alliance (NDA) government’s term. In walking out, the Opposition played into the hands of the government, leaving it with the simple task of obtaining a two-third majority from Members of Parliament “present and voting” in the House.

Advantage UPA

The Constitutional Amendment will be passed easily in the Lok Sabha, what with the UPA’s numbers in the lower House. What remains is its ratification by one-half of all States — not a tall order considering the Congress is the ruling party in 14 of them. For all of Mr. Sibal’s claims that this process will take over six to eight months, it is fairly reasonable to presume it will be completed in a short time frame. Meanwhile, the JAC Bill will likely be passed in the early days of the winter session. We could even see a new system for appointing Supreme Court judges in place by the end of this year.

2014 and scam investigation

Why the UPA is in such a hurry to pass laws that effectively compromise the independence of the judiciary, at such a critical juncture, is anyone’s guess. Ahead of the general election, the Supreme Court will play a crucial role in moulding public perception of the governing class, as it adjudicates cases relating to the 2G and Coalgate scams. Nearly 10 judges of the Supreme Court will retire in 2014 — including Chief Justice P. Sathasivam and senior Justices G.S. Singhvi and K.S. Radhakrishnan, who currently preside over the 2G scam adjudication — creating perhaps one of its biggest annual vacancies ever. The new Justices, who will determine the Court’s make-up, could also rule on the constitutionality of several flagship laws of the UPA, most importantly on food security and land acquisition. Is the government trying to “pack the Court” with flexible judges? The proposed JAC certainly offers this opportunity — as long as its “eminent” members toe the line of the government, the UPA can ensure favourable appointments even before it remits office in May 2014.

Any such attempt to protect the government’s reputation in the short term will prove damaging to our long-cherished principle of separation of powers. The government must allow for debate on the Constitutional Amendment in the Lok Sabha, rather than rushing it through the House. That the process of judicial appointments is currently non-transparent is no excuse to twist it in favour of the executive.

arun.sukumar@thehindu.co.in

More In: Comment | Opinion

Could someone elaborate what is the appointment of judges system in i.
the European countries 2. US, Japan, Canada to bring objectivity into
the discussion.

from:  a agarwal
Posted on: Sep 11, 2013 at 15:12 IST

Misleading first few lines regarding the U.S. Supreme Court, 'the US public and congress
saw right through the appeal'. They never saw through anything instead Justice Roberts
switched sides along with the then Chief Justice and started voting in favour of the judges
called 'Three Musketeer' who were pro- New Deal and thus rendered the whole exercise
useless and unnecessary. This led to coining of the famous phrase ' A switch in time saved
Nine' as Roosevelt wanted to increase the number from Nine to Fifteen. If our courts would
do the same and increase transparency and accountability in the process of judicial
appointments, it would render the current legislation unnecessary and redundant. The
government has dared to bring about this legislation as the Judiciary has not been able to
bring its house to order and there is lot of criticism of the appointment process from quarters
(like lawyers etc.) which in normal circumstances would go to any lengths to ensure Judicial
independence.

from:  Neelabh
Posted on: Sep 9, 2013 at 17:47 IST

It is nothing but interference of powers of Executive with those of
Judiciary which our Constitution has not contemplated in any of the
Articles of our Constitution. Executive shall not have any say in the
appointment of judges at any level.There is no bar to introduce any bill
on bringing about transparency in the appointment of judges by the
Legislature ,but there should be a complete say by the Judiciary in the
appointment of judges. (

from:  Araja Ramakrishna
Posted on: Sep 9, 2013 at 16:34 IST

These kind of antics by the government has been really undermining the aspirations of any Indian thinking optimistically about the countries progress.
It is so sad that there no leader present in any political party whom we can endorse as a leader per se. Indians are fighting hard to make India better but government bad policies are big deterrant. It is time to people to take control of Indian polity and i think AAP is just the starting.

from:  Jatin Kathuria
Posted on: Sep 9, 2013 at 15:45 IST

The idea that the Judiciary should be self regulating and unaccountable is absurd. These men and women are woven of the same cloth as their brethren in the political and bureaucratic classes, and are subject to the same corrupt behaviors and abuses of power. The proposed JAC seems a reasonable way of providing for the selection of judges where the representatives of the people have a say. If the process is abused it will not be because the structure was faulty, but because the members of the JAC resort to abuse of power just as much as the Collegium has the potential to do so.
Of course knowing the Gandhis', if they have any say in the matter, will do their best to appoint the most unqualified unsavory characters who are beholden to them, and them alone.

from:  Thampi
Posted on: Sep 9, 2013 at 14:59 IST

All parties are united when it comes to protecting their power-base. And
even constitutional amendments which require a two-thirds majority can
be managed. But when it comes to issues like Lokpal, they will lie
forever on the backburner. This crass political class is going to ruin
our country.
Dont the citizens have any say in such important issues, other than
casting their votes every five years? There should be some other
mechanism to intervene at the correct time.

from:  Raj N
Posted on: Sep 9, 2013 at 14:36 IST

A complete critic with an investigative view on the JAC. The UPA
government is still trying to push the 2G under the carpet using it's
poisonous claws on our noble constitution and Judiciary to gain some
immunity (towards their scams) would jeopardise the nation's credibility
and intergrity. I feel like an alien inside my own country, neither
concern nor responsibility from politicians.

from:  sandeep kumar
Posted on: Sep 9, 2013 at 14:16 IST

It is nothing but interference of powers Executive with those of
judiciary which our Constitution has not contemplated in any of the
Articles of our Constitution. Executive shall not have any say in the
appointment of judges at any level.There is no bar to introduce any bill
on bringing about transparency in the appointment of judges by the
Legislature ,but there should be a complete say by the Judiciary in
appointment of judges.

from:  Araja Ramakrishna
Posted on: Sep 9, 2013 at 11:17 IST

Wonderfull bill to derail judiciary. Enough is enough!
Most media and press (one pillar) are owned by Politicians.
Excutive Government(one more pillar) is also Politicians.
Legislature (Parliament & State Assemblies) (another Pillar) is also Politicians.
Good Politicians are tied hand under party wipe.
The last pillar was judicary with less inteferance of politicians is now on fire.
It is now president who can return the bill.
But he too was a politician, will he?

from:  Sreenivasa Prasanna
Posted on: Sep 6, 2013 at 07:37 IST

Law and justice in principle should be kept aloof from political interference and vendetta. Police, under the purview of state, has seen extensive misuse by the State Administrations including use of police, the guardians of law, for extra-judicial murders and fake encounters killing. An independent Administrative set up and review board to effect transfers, posting and promotions manned by senior officers, judges, reputable civilians could prevent the misuse of police. The attempt and recommendations for such a commission is not very acceptable to the States. Only a few states have implemented some for of it.
Misuse of CBI for political vendetta has attracted Supreme Court strictures but yet CBI is waiting for independence from political interference.
Now attempt is made to subjugate Judicial appointments. The executive branch while can pass law as prescribed in the constitution, Judicial appointments,transfers must be left either to current collegiate system or a similar Review board

from:  Rajan Panda
Posted on: Sep 6, 2013 at 07:37 IST

The politicians should first enact unambiguous laws with best interest of Nation And People and pass comments on Judiciary

from:  Thirumalai Samy
Posted on: Sep 5, 2013 at 19:38 IST

When it comes to attacking judiciary all political parties are same..Congress have proved it several time ..the last to challenge the landmark judgement of supremecourt to disquallify convicted politicians from contesting elections...but BJP which portrays anti-corruption as its key agenda and eminent person like Mr. Jaitley should have taken more matured stand...we feel really sad that the alternative for incumbent govt seems missing the whole point....when it comes caging parrot or arm twisting tactics all parties stand together. ...Its annoying to hear that involvement of executive will make selection of judges more transparent...I think our executives are exploring fresh waters for kickbacks even nit leaving our judiciary system....

from:  Prasad
Posted on: Sep 5, 2013 at 19:03 IST

Still Judiciary is more fare than you netas grouping in the parliament. You are going to amend the Peoples's Representation Act 1951. This is not fair. How can you allow criminals, rapists, murderers etc in the parliament? You can not interfere in the judicial system. This is your secret agenda to allow criminals, rapists, murderers into the judiciary through the Judicial Bill. If you pass any such bill in LS and RS then I'm damn sure that Supreme Court will null and void such bill.

from:  Mukesh Kumar
Posted on: Sep 5, 2013 at 18:20 IST

There is no sky of difference between Congress and BJP or for that
matter between Indian political parties in defending their rights. Their
unity of unwillingness to comply with declaration of party funds
received from various sources is a glaring example. Likewise all
political parties think Parliament and Assemblies are Supreme and not
the people who have voted them. Assault on judiciary, righteous officers
another point. Pandit Nehru, Sardar Patel, Morarji Desai,Indira Gandhi
and Atalji are unique personalities in Indian political arena.

from:  Vyas K Susarla
Posted on: Sep 5, 2013 at 18:12 IST

Mr Arun Jaitely correct your perception,Judiciary is not responsible for country's cureent account deficit and economic turmoil.By stopping Iron ore minning it has saved enviornment and valuable iron and other resources,which better should be used in the country to prepare finished products instead of exporting raw material and importing finished goods.When political class and especially executive fails people then judiciary come into their rescue.First look into yourself then comment on judiciary.Ordinary people have lost faith in you politicians.If you are worried about restoring "delicate balance of power" then first put parliament in order.What you people are doing with RTI on saving goons to survive in politics is testimony of your hypocrisy.

from:  ALOK KUMAR
Posted on: Sep 5, 2013 at 18:04 IST

Calling Parliament supreme and letting criminals enter and stay at
their pleasure in Parliament by winning votes of illiterate and poor
masses, democracy in India is a complete sham. The safeguards - SC, EC,
CAG... are cut at their roots by these law makers who have become a law
unto themselves. Dissent is detested particularly when it is against
the political class. This class brooks no opposition and they in spite
of the professed difference on ideology among political parties are
very much united when it comes to slaying all checks and balances. The
Constitution makers, if were alive today, would have have written
entirely new chapter on qualification of law makers, independence of
law enforcing agencies...Today we have reached a stage when the
politicians mostly will call who will be judges in High Courts and
Supreme Court. We know what state the nation when such call is made in
other sectors. If there is God, even he can not save this nation.

from:  Ravi
Posted on: Sep 5, 2013 at 17:55 IST

Why Executive needs to have a say in the appoinments of judges ? What is their interest ?

from:  Srinivasan Selvaraj
Posted on: Sep 5, 2013 at 17:33 IST

Whenever the govt and the opposition are on the same page, they are
about to do something detrimental to the country...Food Bill, Land Bill,
circumventing the SC ban on criminal MPs, removing political parties
from RTI and now this.

from:  Rajesh
Posted on: Sep 5, 2013 at 17:25 IST

It is really a joke that when the High Courts and Supreme Court is thinking of the general people to establish transparency in judgement, this Government is blaming these Institutions. Will the CAD or BOP in positive side if the Posco start functioning in Orissa? Again another round of Maoist will come to the forefront and the politicians will start blamegame. If the collegium system is wrong then what about the chair of the Deputy Chairman of Planning Commission!!! Is there no other eligible person in the whole India to fit the shoe of the Deputy Chairman of Planning Commission!!! Will the man ever be changed???

from:  Joydeep Mukherjee
Posted on: Sep 5, 2013 at 17:18 IST

High court and supreme court are like federal association of nation where these corrupt ministers cant interfere if we give access to decide who will b the judge of SC and HC than we will loose A Raja and Sonia Gandhi or Narender modi will rule this nation forever.

Today all civil services comes under ministers so they r transferring them for their own benefits. Bureaucrats are the real power of nation but ministers r biting everyone because every ias and ips have to report ministers directly.

from:  Ajay
Posted on: Sep 5, 2013 at 17:15 IST

There goes the one thing which works for India. And so the necessary
conditions for revolution have been met. Unfortunately, it does not seem
it will be non-violent this time.

from:  raman
Posted on: Sep 5, 2013 at 16:42 IST
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