Serious flaws
Source: By Rajindar Sachar: Deccan Herald
Both the government and the opposition in Parliament showed remarkable comradeship in accusing the judiciary of all ills in the society. The occasion was to find a substitute for the present methodology of appointment of judges of high court and the Supreme Court, namely the collegium system. That the collegium system of appointment needs to be improved upon, there is a broad agreement in the public and legal fraternity. But then critics must also answer the query raised by the present Chief Justice of India wherein he has pointed out that, 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 in the selection? May I scotch this slander by pointing out that there is universal acclaim for the present judiciary’s impartiality and determination in exposing some of the biggest scams like the coalgate, telecom and in land scams. The recent Supreme Court decision to debar convicted legislators from continuing as legislators is a big blow against the evil of criminalisation of politics. Let me emphasise that the appointments of all these judges were made through the collegium system; while the disgraceful role played by judges in colluding in the supersession case in 1973, and again during Emergency in 1975 were all pre collegium appointments. Would we because of these vagaries be justified in wholesale condemnation of pre collegium system appointees – certainly not? From 1950 onwards there have been many stalwarts who adorned the judiciary.
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 discredited legislators and in an atmosphere of suspicion, and half baked information. Now that the bill has gone to standing committee of Parliament it is to be expected it will be widely circulated throughout the country so that legal fraternity, law schools and the public men could have time to discuss it threadbare.
Frankly, the strategy of the law minister to get the 120th Constitution Amendment Bill passed and sent to the states for ratification without the comments of Judicial Appointments 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 law. It also has sinster implications for future. The proposed constitution amendment only provides for there being Judicial Appointment Commission mentioned in Article 124A, and 217 of the constitution but without full details like composition and the procedure for appointments being included in the constitution Amendment Bill – they are of course mentioned in the Bill, but that cannot prevent mischief being done by a future government.
Constitutional amendment
As an example composition of commission at present in the Bill provides that it will be presided by Chief Justice of India. But if after approval of Constitutional Amendment, the Parliament were to amend the Act to say the judicial commission would be headed by a law minister - there would be no hurdle, because the constitutional amendment only provides for 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 Judicial Commission Bill with all its provisions has to be a part of Constitution Amendment Bill, just as at present Article 222, specifically mentions that the Governor and Chief Justice of a State will be consulted when selecting a judge for the high court.
In the Bill for 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 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 are so popular with millions of voters and how can they be not considered, eminent. Perverse logic, but in construction of 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 Leader of Opposition in 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 for representation in the parliament and legislatures. No objection on the ground of imminent dissolution of parliament will apply because one House of Parliament has already passed it, and also prime minister of UPA government first announcement made after 2009 general elections was a promise to immediately to pass this legislation – the same commitment had been made by all previous governments.
Both the government and the opposition in Parliament showed remarkable comradeship in accusing the judiciary of all ills in the society. The occasion was to find a substitute for the present methodology of appointment of judges of high court and the Supreme Court, namely the collegium system. That the collegium system of appointment needs to be improved upon, there is a broad agreement in the public and legal fraternity. But then critics must also answer the query raised by the present Chief Justice of India wherein he has pointed out that, 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 in the selection? May I scotch this slander by pointing out that there is universal acclaim for the present judiciary’s impartiality and determination in exposing some of the biggest scams like the coalgate, telecom and in land scams. The recent Supreme Court decision to debar convicted legislators from continuing as legislators is a big blow against the evil of criminalisation of politics. Let me emphasise that the appointments of all these judges were made through the collegium system; while the disgraceful role played by judges in colluding in the supersession case in 1973, and again during Emergency in 1975 were all pre collegium appointments. Would we because of these vagaries be justified in wholesale condemnation of pre collegium system appointees – certainly not? From 1950 onwards there have been many stalwarts who adorned the judiciary.
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 discredited legislators and in an atmosphere of suspicion, and half baked information. Now that the bill has gone to standing committee of Parliament it is to be expected it will be widely circulated throughout the country so that legal fraternity, law schools and the public men could have time to discuss it threadbare.
Frankly, the strategy of the law minister to get the 120th Constitution Amendment Bill passed and sent to the states for ratification without the comments of Judicial Appointments 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 law. It also has sinster implications for future. The proposed constitution amendment only provides for there being Judicial Appointment Commission mentioned in Article 124A, and 217 of the constitution but without full details like composition and the procedure for appointments being included in the constitution Amendment Bill – they are of course mentioned in the Bill, but that cannot prevent mischief being done by a future government.
Constitutional amendment
As an example composition of commission at present in the Bill provides that it will be presided by Chief Justice of India. But if after approval of Constitutional Amendment, the Parliament were to amend the Act to say the judicial commission would be headed by a law minister - there would be no hurdle, because the constitutional amendment only provides for 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 Judicial Commission Bill with all its provisions has to be a part of Constitution Amendment Bill, just as at present Article 222, specifically mentions that the Governor and Chief Justice of a State will be consulted when selecting a judge for the high court.
In the Bill for 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 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 are so popular with millions of voters and how can they be not considered, eminent. Perverse logic, but in construction of 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 Leader of Opposition in 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 for representation in the parliament and legislatures. No objection on the ground of imminent dissolution of parliament will apply because one House of Parliament has already passed it, and also prime minister of UPA government first announcement made after 2009 general elections was a promise to immediately to pass this legislation – the same commitment had been made by all previous governments.
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