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--------------- Print Magazine --------------
  May 2016
  April 2016


Remedy must not become worse than Malady

Hemant Kumar, Advocate
A long overdue idea brewing in the mind of successive ruling dispensations at the Centre aimed at abrogating Judiciary devised “Collegium” system so as to tend to restore the “considerable role or say” if not “preponderance” of political executive in the entire exercise of appointing members of the higher judiciary which could not happen in over two decades, has finally been made possible only recently. Be what may, albeit the whole process is yet to reach its finale, scepticisms have started emanating from various quarters questioning what if the remedy becomes worse than the malady.

On the eve of this year's Independence Day when the Monsoon Session of the Parliament got concluded, among the other Bills passed during over one month long first regular session under the Modi dispensation, there also figured a couple of historic legislations which envisage both scrapping over the two-decades old Supreme Court conceived "Collegium" mechanism currently being adopted for appointing members of the Higher Judiciary as well as clearing the decks for the constitution of the first ever National Judicial Appointments Commission (NJAC) for the country to take over this onerous task. What was even more astonishing for everyone was that both pieces of legislations viz . the Constitution (121st Amendment) Bill, 2014 and the NJAC Bill, 2014 were passed by both Houses within a period of merely four days.

It also merits due reference here that on the very same day when these twin Bills were introduced firstly in the Lok Sabha on August 11, the Chief Justice of India (CJI) Justice RM Lodha defended the collegium system regarding appointment of judges asserting that concerted attempts were being made to tarnish the image of the judiciary in the eyes of the public. He even went to the extent of pointing out that under this system, he was in the first batch of judges. "If the collegium has failed, then its products (the judges) too are failures and the judiciary as a whole has failed the country," he lamented. Even a day after the Parliament passed the ibid legislations, he could not resist himself commenting over the same albeit in an ostensible manner. ( See Box)

Be that as it may, it is pertinent to mention that although the promise for setting up of a National Judicial Commission (NJC) for the appointment of Judges in the Higher Judiciary was explicitly outlined in the BJP's Election Manifesto-2014, nobody could have ever imagined that necessary legislative framework for constituting the same would sail through the Parliament in such a short span of time. After all, it has been over twenty-four years since the very first legislative initiative to create such an institution was attempted when the Constitution (67th Amendment) Bill, 1990 was tabled in May 1990 by the then Union Law Minister, Dinesh Goswami in the National Front Government of V P Singh. The purpose was to obviate the criticisms of arbitrariness on the part of Executive in such appointments and transfers of Higher Judges. The ibid Bill proposed introduction of Part XIIIA (apart from amending Articles 124, 217, 222 and 231) in the Constitution incorporating a new Article 307A.

It was proposed therein that the proposed NJC insofar as making recommedations regarding the appointment of a Judge of the Supreme Court (other than the CJI), the Chief Justice(CJ) of a High Court and as to the transfer of a High Court Judge would comprise of the CJI who shall be the Chairperson and two other Judges of the Supreme Court next to the CJI in seniority. As regard to making recommedation for appointment of a Judge of any High Court, the NJC was to consist the CJI, one other Judge of the Supreme Court next to the CJI in seniority, the Chief Justice of the High Court, one other Judge of the next to the CJ in seniority and the Chief Minister of the concerned State or the Governor, in case there is a Proclamation under Article 356 in operation in that State. This Bill though seemed to be a praiseworthy effort, got lapsed with the dissolution of the Ninth Lok Sabha in 1991.

After the laying down of the prevalent "Collegium" mechanism by the Apex Court through its much-hyped Second Judges case (October 1993), there was virtually no attempt by the then Congress Government under Narsimha Rao to undo the same. Thereafter, Ramakant Khalap, then Union Law Minister in the United Front government headed by HD DeveGowda tried to push forward the Constitution (82nd Amendment) Bill, 1997 which sought to give the political executive a say in the appointment of judges of the Supreme Court and the High Courts but the idea regarding the same had to be dropped even before its due introduction in the Lok Sabha owing to lack of consensus amongst political parties especially due to stiff opposition by the Left parties and the BJP over this vexed issue.

This Bill provided that the appointment of a judge of the Supreme Court or of a High Court shall be initiated by the President or by the CJI (in the case of the Supreme Court) and the Chief Justice in the case of a High Court. However, the Bill declared that the power of appointment of these judges shall vest solely and exclusively in the President who shall not be bound by any opinion on consultation obtained under this clause. Similarly, the Bill sought to vest in the President the sole authority on transfer of High Court judges. It also declared that any power exercised by the President in this regard shall not be called in question in any court on any ground.

The next initiative was taken by Arun Jaitley, the then Union Law Minister under the NDA regime in May 2003 who by introduction of the Constitution (98th Amendment) Bill, 2003 proposed a five-member NJC which apart from the CJI and two other Judges of the Supreme Court next in seniority to him would also comprise the Union Law Minister and one eminent person to be nominated by the President in consultation with the Prime Minister. Also, this NJC was proposed to be empowered to lay down a Code of Ethics for the Judges of the Supreme Court and the High Courts as well as inquire into, suo motu or on a complaint or reference, cases of misconduct or such deviant behaviour of a judge other than those calling for his removal and advise the CJI or the CJ of a High Court appropriately after such inquiry. Sadly, the same also lapsed with the dissolution of the 13th Lok Sabha in early 2004.

Further, it was Kapil Sibal, the fourth Union Law Minister in UPA -2 dispensation who with much fanfare introduced the Constitution (120th Amendment) Bill, 2013 along with Judicial Appointments Commission (JAC) Bill, 2013 in August 2013. But only the former could get passed and that too only in the Rajya Sabha. As the same could not sail through in the 15th Lok Sabha till its tenure, consequently it also got lapsed. The same was the fate of one another crucial legislation of the Manmohan Singh Government viz. the much-publicized Judicial Standards and Accountability Bill, 2010 which though got passed in the Lok Sabha in March 2012, could not be cleared by the Rajya Sabha, so the same also lapsed.

Amidst all this, it would have been more appreciable and imperative on the part of the incumbent NDA dispensation if it had emulated and brought the same avatar of Constitution Amendment Bill as introduced by Arun Jaitley as hereinbefore referred. It would have served twin purposes with respect to not only dealing with issues of appoinment/transfer but also regarding their standards and accountability.

Notwithstanding all the assertions and reasonings given by the Union Law Minister , Ravi Shankar Prasad in defence of the objects of twin Bills while piloting the same as well as contentions given by all those learned Parliamentarians in respective Houses of Parliament while supporting these legislations cutting across party lines, it is nevertheless true that the composition of the proposed six-member NJAC as provided in the Constitution (121st Amendment) Bill, 2014 wherein there would be an equal ratio of the members of the Higher Judiciary vis-à-vis other members, any prudent person would never appreciate this idea. Highly Bizzare !

The members of the Judiciary ought to have an edge in the NJAC as also provided in couple of versions tabled in the years 1990 and 2003. Even otherwise, in such bodies, there must be an 'odd' number of members rather than 'even' so that decisions can be taken conveniently and without any legal glitch. Further, giving veto power to "any two" members is also highly hazardous albeit if the same was confined only in respect of CJI or other two Judges, it would have made some sense. The two nominated persons might be "eminent" but they can never be equated with that of the stature of the Supreme Court Judges. Even the author of this story would like to raise one more point which has not been highlighted. Why has the Constitution (121st Amendment ) Bill, 2014, as now passed by the Parliament, also amended Articles 127, 128, 224A ? These Articles were not even touched in earlier versions of the Bill as these only contain provisions which tend to empower the CJI and CJ of a High Court, of course with the previous consent of the President, to appoint ad hoc Judges in the Supreme Court as well as ensuring attendance of retired judges at sittings of the Supreme Court and High Courts respectively and that too in exigent circumstances. Shouldn't the NJAC ought to be only delegated with the task of making recommendations for the regular appointments? If the Government did not want to leave any matter from the purview of the NJAC, then it should have also duly amended Articles 126 and 223 which provide for appointment of Acting CJI and CJ respectively in certain cases. Well, this might have been an issue of serious debate in Parliament like certain other nitty-gritties in the twin pieces of legislations but alas it could not take place, thanks to the inexplicable hurry witnessed in the passage of the Bills.

Finally, it can be concluded that notwithstanding the fact that the twin legislations, as passed recently by the Parliament granting both constitutional sanctity coupled with  providing requisite  statutory framework so as to pave the way for duly institutionalizing the selection methodology of members of the Higher Judiciary by taking it away from the hands of  prevalent "Collegium" system, have cleared their first major obstacle smoothly, yet  until and unless the Constitution (121st Amendment) Bill, 2014 gets ratified by one-half of country's State Legislatures followed by grant of due assent to both Bills by  the President of India (remember  he can return the NJAC Bill, 2014 once for
re-consideration of the Parliament, or might even resort to withholding his assent) one can not predict when the proposed NJAC would finally see the light of the day.

Owing to apprehensions expressed and sceptisms being raised in various fora especially by certain intellectuals /jurists along with senior members of the Bar/legal fraternity who foresee the same as a possible infringement over the constitutionally mandated doctrine of "Independence of Judiciary", at this juncture it can only be said that the aforesaid pieces of legislations would have to pass the test of judicial scrutiny before they are duly enforced and operationalized by the incumbent ruling elite.

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