Hello people, its been a long time. Here is a post on the proposed reforms to judicial appointments in India, slightly long but hopefully worth its salt. Please enjoy.
Introduction
The appointment of judges to the Supreme Court and the various High Courts(the Higher Judiciary) is governed by the provisions of article 124 and 217 of the Constitution of India respectively. The appointments are made under the seal of the President of India after consultation with the Chief Justice of India, and such other Supreme Court and High Court judges as is deemed fit. The Supreme Court in the various ‘Judges cases’, has held that the opinion of the Chief Justice of India along with the two other senior most judges(The Collegium) of the Supreme Court, is binding on the President.
The Government of India under the proposed Judges Appointment Commission Act(hereinafter JAC Act), seeks to change this system of appointments to the Higher judiciary. It is proposed that, a Judicial Appointment Commission be set up for proposing the names of appointees. This present article is an attempt to critically analyze this proposed legislative enactment.
Judicial Appointment Commission: The Law.
The JAC Act provides for the formation of a Judicial Appointment Commission (hereinafter referred to as JAC) which is to replace the Collegium of Judges from the Supreme Court, in giving advice to the President of India regarding judicial appointments. This Commission is to be chaired by the Chief Justice of India, and will consist of the following members, The Chief Justice of India(ex-officio); Two other senior most Judges of the Supreme Court (ex-officio);The Union Minister of Law & Justice (ex-officio); Two eminent persons, “to be nominated by a collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of People.”
It should be noted that in case of appointments to the High Courts the JAC is required to elicit the views of the Chief Minister, the Governor and the Chief Justice of the concerned High Court. These views are to be given in writing.
The JAC also has the powers to make its own rules and regulations regarding the method of discharge of its functions under this Act.
The JAC Act is coupled with the Constitution (120th Amendment) Act, which gives constitutional validity to the opinion(s) of the proposed JAC. Interestingly, it also provides for insertion of a new article in the Constitution which is to be discussed in a later part.
Thus, we have seen the proposed legislative and constitutional provisions for implementation of the JAC.
The appointment of judges to the Supreme Court and the various High Courts(the Higher Judiciary) is governed by the provisions of article 124 and 217 of the Constitution of India respectively. The appointments are made under the seal of the President of India after consultation with the Chief Justice of India, and such other Supreme Court and High Court judges as is deemed fit. The Supreme Court in the various ‘Judges cases’, has held that the opinion of the Chief Justice of India along with the two other senior most judges(The Collegium) of the Supreme Court, is binding on the President.
The Government of India under the proposed Judges Appointment Commission Act(hereinafter JAC Act), seeks to change this system of appointments to the Higher judiciary. It is proposed that, a Judicial Appointment Commission be set up for proposing the names of appointees. This present article is an attempt to critically analyze this proposed legislative enactment.
Judicial Appointment Commission: The Law.
The JAC Act provides for the formation of a Judicial Appointment Commission (hereinafter referred to as JAC) which is to replace the Collegium of Judges from the Supreme Court, in giving advice to the President of India regarding judicial appointments. This Commission is to be chaired by the Chief Justice of India, and will consist of the following members, The Chief Justice of India(ex-officio); Two other senior most Judges of the Supreme Court (ex-officio);The Union Minister of Law & Justice (ex-officio); Two eminent persons, “to be nominated by a collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of People.”
It should be noted that in case of appointments to the High Courts the JAC is required to elicit the views of the Chief Minister, the Governor and the Chief Justice of the concerned High Court. These views are to be given in writing.
The JAC also has the powers to make its own rules and regulations regarding the method of discharge of its functions under this Act.
The JAC Act is coupled with the Constitution (120th Amendment) Act, which gives constitutional validity to the opinion(s) of the proposed JAC. Interestingly, it also provides for insertion of a new article in the Constitution which is to be discussed in a later part.
Thus, we have seen the proposed legislative and constitutional provisions for implementation of the JAC.
Judicial Appointment Commission: The Policy Rationale.
The rationale for setting up of the Judicial Appointment Commission is stated as follows in the statement of objectives of the 120th Constitutional Amendment Act,
“3. As regards the appointment of Judges of the Supreme Court and High Courts, the Supreme Court, in the matters of the Supreme Court Advocates-on-Record Association Vs. Union of India and its Advisory Opinion 1998 in Third Judges case, had interpreted articles 124(2) and 217(1) of the Constitution with respect to the meaning of “consultation” as “concurrence”. It was also held that the consultation of the Chief Justice of India means collegium consisting of the Chief Justice and two or four Judges, as the case may be. This has resulted in a Memorandum of Procedure laying down the process which is being presently followed for appointment of Judges to both the High Courts and the Supreme Court. The Memorandum of Procedure confers upon the Judiciary itself the power for appointment of Judges.
4. After review of the pronouncements of the Supreme Court and relevant constitutional provisions, it was felt that a broad based Judicial Appointment Commission could be established for making recommendations for selection of Judges. It would 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 process.
6. The proposed Bill would enable equal participation of Judiciary and Executive in appointment of Judges in higher judiciary and make the system of appointments more accountable and thereby increase the confidence of the public in the institution of judiciary.”
Thus, it is clear that this is an attempt by the Executive to increase oversight over the judiciary. We have thus seen an overview of the proposed policy of establishing of a JAC for appointments to the higher judiciary. The researcher in the next segment will discuss the possible effects of this move by the Union Executive.
JAC: A move towards Judicial (in)dependence?
Independence of the judiciary is one of the necessary supporting pillars of a democratic system, a system based on the contours of constitutionalism and the rule of law. This is so because in Constitutional democracies, the higher Judiciary is not only the upholder of Constitutional values, but is also duty bound to enforce the contours of rule of law and justice. One of the ways of ensuring this independence is to minimize the executive control of judicial appointments. The Supreme Court keeping this in mind clearly stated in the Third Judges Case[1], that the executive is bound by the opinion of the Collegium in regards appointment and transfer of judges in the Higher Judiciary. This and the earlier decisions in the various Judges cases, are to be seen in the background of the excesses against the judiciary during the turbulent Emergency times.
The Collegium system of judicial appointments has been criticized on various grounds viz., that it goes against the tenets of separation of powers; its a clear case of judicial overreach; it has led to rampant favoritism and judicial corruption; and is responsible for the supposed ‘falling’ standards of our judiciary.
The proposed JAC is to consist of the present day Collegium alongwith the Minister of law and justice and two independent members, who are selected by the PM, Leader of Opposition and the CJI. So this is a 6 member commission, with 3 judicial members, one executive member, and two independent members. At first sight this seems to be an acceptable proposition which will not greatly undermine judicial independence. But, the following points need to be analyzed before one comes to any conclusion,
Firstly, the two independent members are to be selected by a committee consisting of the Prime Minister, the Leader of Opposition and the CJI. This committee though consisting of important constitutional functionaries, is still in absolute numbers controlled by the legislative and executive wings.
Secondly, though the CJI is the chairman of the committee, it is to be noted that his exact position vis-à-vis the other committee members is not defined.
Thirdly, there is no description as to how the Committee will decide on the names to be recommended, viz. whether it will have to be a unanimous choice, or a mere majority of numbers.
Lastly, what is the position of the JAC vis-à-vis the President? Is the opinion of the JAC binding on the President, or can the President act independently of the opinion given by the JAC?
Thus, as is clear from the above issues, the proposed JAC system is fraught with loopholes that can be used by the executive to slowly undermine the independence of the judiciary.
It should be remembered that its not the times when all functionaries are working properly that the strength of a system is seen, but its in times of crisis, when these functionaries malfunction, that the real strength of a system is seen. Therefore, it is imperative to create a system with minimum loopholes and maximum safeguards, both of which seem to be absent under the proposed system.
The rationale for setting up of the Judicial Appointment Commission is stated as follows in the statement of objectives of the 120th Constitutional Amendment Act,
“3. As regards the appointment of Judges of the Supreme Court and High Courts, the Supreme Court, in the matters of the Supreme Court Advocates-on-Record Association Vs. Union of India and its Advisory Opinion 1998 in Third Judges case, had interpreted articles 124(2) and 217(1) of the Constitution with respect to the meaning of “consultation” as “concurrence”. It was also held that the consultation of the Chief Justice of India means collegium consisting of the Chief Justice and two or four Judges, as the case may be. This has resulted in a Memorandum of Procedure laying down the process which is being presently followed for appointment of Judges to both the High Courts and the Supreme Court. The Memorandum of Procedure confers upon the Judiciary itself the power for appointment of Judges.
4. After review of the pronouncements of the Supreme Court and relevant constitutional provisions, it was felt that a broad based Judicial Appointment Commission could be established for making recommendations for selection of Judges. It would 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 process.
6. The proposed Bill would enable equal participation of Judiciary and Executive in appointment of Judges in higher judiciary and make the system of appointments more accountable and thereby increase the confidence of the public in the institution of judiciary.”
Thus, it is clear that this is an attempt by the Executive to increase oversight over the judiciary. We have thus seen an overview of the proposed policy of establishing of a JAC for appointments to the higher judiciary. The researcher in the next segment will discuss the possible effects of this move by the Union Executive.
JAC: A move towards Judicial (in)dependence?
Independence of the judiciary is one of the necessary supporting pillars of a democratic system, a system based on the contours of constitutionalism and the rule of law. This is so because in Constitutional democracies, the higher Judiciary is not only the upholder of Constitutional values, but is also duty bound to enforce the contours of rule of law and justice. One of the ways of ensuring this independence is to minimize the executive control of judicial appointments. The Supreme Court keeping this in mind clearly stated in the Third Judges Case[1], that the executive is bound by the opinion of the Collegium in regards appointment and transfer of judges in the Higher Judiciary. This and the earlier decisions in the various Judges cases, are to be seen in the background of the excesses against the judiciary during the turbulent Emergency times.
The Collegium system of judicial appointments has been criticized on various grounds viz., that it goes against the tenets of separation of powers; its a clear case of judicial overreach; it has led to rampant favoritism and judicial corruption; and is responsible for the supposed ‘falling’ standards of our judiciary.
The proposed JAC is to consist of the present day Collegium alongwith the Minister of law and justice and two independent members, who are selected by the PM, Leader of Opposition and the CJI. So this is a 6 member commission, with 3 judicial members, one executive member, and two independent members. At first sight this seems to be an acceptable proposition which will not greatly undermine judicial independence. But, the following points need to be analyzed before one comes to any conclusion,
Firstly, the two independent members are to be selected by a committee consisting of the Prime Minister, the Leader of Opposition and the CJI. This committee though consisting of important constitutional functionaries, is still in absolute numbers controlled by the legislative and executive wings.
Secondly, though the CJI is the chairman of the committee, it is to be noted that his exact position vis-à-vis the other committee members is not defined.
Thirdly, there is no description as to how the Committee will decide on the names to be recommended, viz. whether it will have to be a unanimous choice, or a mere majority of numbers.
Lastly, what is the position of the JAC vis-à-vis the President? Is the opinion of the JAC binding on the President, or can the President act independently of the opinion given by the JAC?
Thus, as is clear from the above issues, the proposed JAC system is fraught with loopholes that can be used by the executive to slowly undermine the independence of the judiciary.
It should be remembered that its not the times when all functionaries are working properly that the strength of a system is seen, but its in times of crisis, when these functionaries malfunction, that the real strength of a system is seen. Therefore, it is imperative to create a system with minimum loopholes and maximum safeguards, both of which seem to be absent under the proposed system.
JAC: The Constitutional Question.
As already discussed above the current system of judicial appointments is governed by the provisions of articles 124 and 217 respectively, as interpreted by the Supreme Court in the various Judge’s case(s).
The proposed system of JAC on the other hand is accompanied by a Constitutional Amendment which provides for the insertion of the following article,
“124A. (1) There shall be a Commission to be known as the Judicial Appointments Commission.
(2) Parliament may, by law, provide for—
(a) the composition of the Commission;
(b) the appointment, qualifications, conditions of service and tenure of office of the Chairperson and other members of the Commission;
(c) the functions of the Commission;
(d) the procedure to be followed by the Commission in discharge of its functions;
(e) the manner of selection of persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts; and
(f) such other matters as may be considered necessary.”
It also makes the requisite changes to the wordings of the various articles to allow for the JAC to recommend names for appointments and transfers in the higher judiciary.
It is pertinent to note that we are hereby moving from a system of appointments governed solely by Constitutional provisions to a system where it is governed merely by a legislative enactment. The difference between these two systems is that a change in a constitutional provision can only be undertaken by a constitutional amendment, which requires a super majority of two-thirds of members in both houses present and voting alongwith ratification by half of the state legislatures(in the case of article 124 and 217). Whereas any changes under the new system can be undertaken by a simple legislative amendment which requires a mere simple majority. Thus, this change can fundamentally alter the separation of powers in the Indian scenario in the favour of the executive.
Conclusion
The present policy initiative is admittedly an attempt to make the appointment process more participatory and open to scrutiny. At a prima facie level, any move towards an more participatory and open system within a democracy is a welcome step. Such moves are especially welcome in times where the nation is beset with corruption, official apathy and overreach. The Higher Judiciary though still respected by the general populace, is fast losing its sheen due to the endemic delays and decay of the system. One of the prevalent populist explanations for this gradual decay in the judicial system is the opaque system of appointments being followed by our judiciary. Thus, by populist standards this seems to be a laudable objective that is being pursued by the Executive.
This intent though praiseworthy in theory has to be looked at carefully to understand the possible undercurrents. The Higher Judiciary in the recent years has taken a proactive role and has made judicial activism the buzzword of its existence. The Higher Judiciary has been tightening the screws over the Executive in all instances where the Executive is shown to be lax towards its functions. Be it allocation of natural resources, conduct of elections, et cetera, the Courts have been taking strict activist stands against the Executive. Thus, this move towards reform of the judicial appointment process needs to be looked at and deliberated with care, as it might be a move by the Executive to usurp excessive powers vis-a-vis the Judiciary.
As a closing comment I will like to state that this reform is not supported neither by the higher judiciary nor the Bar in general, the two biggest stake holders in this reform. Further, the reluctance of the judiciary in accepting this reform, might result in a basic structure challenge being upheld against the proposed reforms, thus leading to a damaging confrontation between the Executive and the Judiciary.
In the next post, I will propose some changes to address the above raised concerns. Till then adieu.
[1] In Re Special Reference, AIR 1999 SC 1.
As already discussed above the current system of judicial appointments is governed by the provisions of articles 124 and 217 respectively, as interpreted by the Supreme Court in the various Judge’s case(s).
The proposed system of JAC on the other hand is accompanied by a Constitutional Amendment which provides for the insertion of the following article,
“124A. (1) There shall be a Commission to be known as the Judicial Appointments Commission.
(2) Parliament may, by law, provide for—
(a) the composition of the Commission;
(b) the appointment, qualifications, conditions of service and tenure of office of the Chairperson and other members of the Commission;
(c) the functions of the Commission;
(d) the procedure to be followed by the Commission in discharge of its functions;
(e) the manner of selection of persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts; and
(f) such other matters as may be considered necessary.”
It also makes the requisite changes to the wordings of the various articles to allow for the JAC to recommend names for appointments and transfers in the higher judiciary.
It is pertinent to note that we are hereby moving from a system of appointments governed solely by Constitutional provisions to a system where it is governed merely by a legislative enactment. The difference between these two systems is that a change in a constitutional provision can only be undertaken by a constitutional amendment, which requires a super majority of two-thirds of members in both houses present and voting alongwith ratification by half of the state legislatures(in the case of article 124 and 217). Whereas any changes under the new system can be undertaken by a simple legislative amendment which requires a mere simple majority. Thus, this change can fundamentally alter the separation of powers in the Indian scenario in the favour of the executive.
Conclusion
The present policy initiative is admittedly an attempt to make the appointment process more participatory and open to scrutiny. At a prima facie level, any move towards an more participatory and open system within a democracy is a welcome step. Such moves are especially welcome in times where the nation is beset with corruption, official apathy and overreach. The Higher Judiciary though still respected by the general populace, is fast losing its sheen due to the endemic delays and decay of the system. One of the prevalent populist explanations for this gradual decay in the judicial system is the opaque system of appointments being followed by our judiciary. Thus, by populist standards this seems to be a laudable objective that is being pursued by the Executive.
This intent though praiseworthy in theory has to be looked at carefully to understand the possible undercurrents. The Higher Judiciary in the recent years has taken a proactive role and has made judicial activism the buzzword of its existence. The Higher Judiciary has been tightening the screws over the Executive in all instances where the Executive is shown to be lax towards its functions. Be it allocation of natural resources, conduct of elections, et cetera, the Courts have been taking strict activist stands against the Executive. Thus, this move towards reform of the judicial appointment process needs to be looked at and deliberated with care, as it might be a move by the Executive to usurp excessive powers vis-a-vis the Judiciary.
As a closing comment I will like to state that this reform is not supported neither by the higher judiciary nor the Bar in general, the two biggest stake holders in this reform. Further, the reluctance of the judiciary in accepting this reform, might result in a basic structure challenge being upheld against the proposed reforms, thus leading to a damaging confrontation between the Executive and the Judiciary.
In the next post, I will propose some changes to address the above raised concerns. Till then adieu.
[1] In Re Special Reference, AIR 1999 SC 1.
