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.
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.
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