A Half-baked Measure: Judicial Appointments Bill Needs a Calm Discussion

By Rajindar Sachar,

The exclusion of the Leader of Opposition in the Lok Sabha from the Judicial Appointment Commission is a serious flaw. In such neutral policy matters both the wings of Parliament must be included.
The exclusion of the Leader of Opposition in the Lok Sabha from the Judicial Appointment Commission is a serious flaw. In such neutral policy matters both the wings of Parliament must be included.

Both the government and the Opposition in Parliament have shown remarkable comradeship in accusing the judiciary of all ills in society. The occasion was to find a substitute for the present collegium system of appointment of Judges of the High Courts and the Supreme Court. There is a broad agreement in the public and legal fraternity that the collegium system of appointments needs to be improved upon. But then critics must also answer the query raised by the present Chief Justice of India wherein he has pointed out that a fair amount of consultation with the government takes place and the judiciary takes into account any negative facts brought out against the proposed appointee.

May I scotch the suggestion invidiously spread by politicians that appointments are based only on caste or personal considerations of the collegium members and merit plays no part. May I scotch this slander by pointing out that there is universal acclaim for the present judiciary’s impartiality and determination in exposing Coalgate, telecom and other scams. The Supreme Court’s recent decision to debar convicted legislators from continuing as legislators is a big blow to the evil of politicisation of criminals. Let me emphasise that the appointments of all these judges were made through the collegium system, while the judges who played a disgraceful role in colluding in the supersession case in 1973, and again during the Emergency in 1975 were all appointed before the collegium system. Because of these vagaries, are we justified in the wholesale condemnation of pre-collegium appointees? Certainly not. Since 1950 we have had stalwart judges like Krishna Iyer, Justice Mukerjee, Justice Mahajan, Justice Suba Rao and Justice Sikri.

No I am not opposing the desirability of change from the present closed collegium system. But this matter needs to be discussed in a calm leisurely manner, and not by the outgoing discredited legislators and in an atmosphere of suspicion, and half-baked information. Now that the Bill has gone to a standing committee, it is to be expected it will be widely circulated throughout the country so that the legal fraternity, law schools, journals and public men could have time to discuss it at leisure.

Frankly, the strategy of the Law Minister to get passed the Constitution Amendment 120th Bill and send it to the states for ratification without the details of the Judicial Appointment Commission being included in it would have been a constitutional monstrosity. Not to include the details in the amendment would be such excessive delegation as to fall foul of the law. It also has sinister implications for future. The proposed Constitution amendment only provides for a Judicial Appointment Commission for Appointment of Judges being mentioned in Article 124A, and 217 of the Constitution but without full details like the composition and the procedure for appointments being included. They are, of course, mentioned in the Bill, but that cannot prevent mischief being done by a future government.

As an example, the Bill provides that the commission will be presided over by the Chief Justice of India. But if after approval of the Constitution amendment, Parliament were to amend the Act to say the judicial commission would be headed by the Law Minister, there would be no hurdle because the Constitution amendment only provides for a judicial commission but says nothing about details. In fact, but for the arrogance of the legislators it should have been clear to them that the whole of the Judicial Commission Bill with all its provisions has to be part of the Constitution Amendment Bill, just as at present Article 222, specifically mentions that the Governor and the Chief Justice of a state will be consulted when selecting a judge for the High Court.

I feel that the present Parliament lacks moral justification to move such an important Constitution amendment. Elections are due latest by next May, 2014. It is reliably understood that the Election Commission may propose to have elections in four or five phases. If so, the first polling may start by February or March, 2014. It is normal to expect that half the present members of the Lok Sabha will not be re-elected. Is it morally fair and politically honest for the outgoing members to seek to pre-empt the decision which both legally and morally would be the privilege of the new Parliament?

Also the Bill has been sent to the Standing Committee. Since the full Bill has to form part of the Constitution amendment, therefore till the Commission Bill is finalised the question of sending the Constitution Amendment Bill to the states for ratification cannot arise.

In the Bill for the commission there are serious flaws. At present only the views of the Governor are to be obtained when a High Court Judge is to be appointed. But now slyly the Chief Minister also finds a place in the commission. I feel it is too political and allows partisan appointments — the inclusion of Chief Minister must be removed.

The personnel for the selection of Judges include a vague self-serving category of “two persons of eminence”. Pray what is the measure of eminence for selecting judges? Supposing two legislators from Parliament or state legislators were to be included in this ‘category of eminence’ (even not having had the advantage of beyond middle class schooling), none of them would consider excusing themselves because their claim would be that they were so popular with millions of voters and how could they be not considered eminent? Perverse logic, but in the construction of the law, how could you rule it out? Of course, the simplest thing would be to substitute it by “eminent jurists”. This will include a large source, namely “retired judges”, “law Professors”, “eminent senior lawyers (who are no longer in regular practice)”. Their presence will automatically reduce arbitrariness to quite an extent.

The exclusion of the Leader of Opposition in the Lok Sabha from the Judicial Appointment Commission is a serious flaw. In such neutral policy matters both the wings of Parliament must be included.

In my view the present Parliament could still redeem itself somewhat of all the scams/scandals, if before its term expires, it passes the Women Reservation Bill. No objection on the ground of imminent dissolution of Parliament will apply because one House of Parliament has already passed it, and also the first announcement the Prime Minister made after the 2009 general election was a promise to immediately pass this legislation — the same commitment had been made by previous governments.

The writer is a former Chief Justice of the Delhi High Court.