But now, the BJP-led NDA government, which boasts of being the first party in 30 years to get a clear majority in the Lok Sabha, seems to be in a tearing hurry to push through the necessary legislation.
It is not that the Narendra Modi government decided to take the plunge in the wake of the latest controversies, three in all. The first one related to Press Council chairman Markandey Katju’s revelation on how a tainted district judge of Tamil Nadu came to be elevated to the high court under political pressure when the UPA-I was in power. The second was on the Supreme Court collegium’s recommendation for the appointment of senior advocate and former Solicitor-General Gopal Subramanium as an apex court judge. Subsequently, Subramanium stepped out of the consideration zone, defusing the situation. The third was over the proposed elevation of Karnataka High Court Judge KL Manjunath, whose name has come under a shadow, as the Chief Justice of Punjab and Haryana High Court.
Just a day after being sworn in on May 26, Law Minister Ravi Shankar Prasad told reporters that restoring the executive’s say in the appointment of higher judiciary judges would be the top priority of the new government. For this, a national-level Judicial Appointments Commission (JAC) would be constituted, replacing the collegium system. The government, particularly the Law Ministry, appears to be on course to have the JAC Bill passed in the ongoing session of Parliament so that the Prime Minister can hold it aloft as a major achievement of his government while hoisting the Tricolour and delivering his maiden address to the nation from the ramparts of the Red Fort on August 15 to celebrate the country’s Independence attained 67 years ago.
Taking his announcement forward, Prasad and Finance Minister Arun Jaitley held consultations with top retired judges and constitution and legal experts who by and large acknowledged that the collegium system had failed to deliver. The deliberations held at Vigyan Bhavan in Delhi were mainly focused on the recommendations of the Parliament Standing Committee for improving the JAC Bill 2013 introduced in the Rajya Sabha on August 29, 2013, by the Congress-led UPA-II government. The upper House has already passed the relevant Constitution Amendment Bill.
No one is certain as to what shape the Bill will finally take as the ministry is still busy fine-tuning its provisions in the light of the views received from all stakeholders. But it is somewhat clear that the JAC will have seven members, instead of six — the Chief Justice of India, two Supreme Court judges, the Law Minister and two eminent jurists nominated by a three-member panel (CJI, Prime Minister and Leader of Opposition in the Lok Sabha) proposed in the original Bill.
It is likely that the judiciary will be given majority representation in the JAC with four judges to preempt a possible stiff resistance against the move to end the supremacy of the collegium. The JAC will be given constitutional status to prevent successive governments from tampering with its character by merely using simple majority to tilt the balance against the judiciary.
Capping the JAC’s strength over the odd number will facilitate majority decisions in the absence of consensus, the preferred method of selection, it is felt. Instead of both nominated members being jurists, one of them could be an eminent person from civil society.
The then Law Minister Kapil Sibal had defended the decision to have six JAC members, contending that this would ensure that all appointments were only on the basis of consensus and any name which did not find favour with even one member was dropped.
However, it is now being felt that this would delay the appointment process, besides making it difficult to find enough suitable candidates. The JAC may be given the task of filling vacancies in the high courts within two months. At present, there are about 270 vacancies in the 24 high courts that constitute about one-third of their sanctioned strength of 906 judges.
The JAC decisions would be binding on the President and if Rashtrapati Bhavan had reservation over any recommendation, it would be referred to the judiciary, if necessary.
Why the system was devised
There were attempts at muzzling the judiciary during the Emergency (1975-77) and frequent supersession of senior judges and arbitrary and motivated transfer of high court judges in the 1980s, undermining judiciary’s independence guaranteed under the Constitution.
The 1993 Supreme Court ruling had come on a petition filed by the court’s Advocates-on-Record Association.
Change trigger
The Constitution does not envisage the appointment of judges exclusively by the judiciary. It does not even mention the word “collegium”. Article 124(2) says apex court judges shall be appointed by the President after “consultation” with the CJI, and such judges of the Supreme Court and the high courts as he deems necessary. Effectively, this has given the power to the ruling party as the President is generally guided by the decisions of the Council of Ministers.
During the constituent Assembly debate, there was a demand for changing “consultation” into “concurrence”, but the House rejected it.
It is also felt that the collegium system is not transparent, resulting in questionable appointments. There is no system for comparing the merits and demerits of prospective candidates. Further, since the judiciary is not accountable to the people, letting it wield such a power is undemocratic.
On the other hand, the executive is accountable to the legislature, the representative body of the people, the ultimate consumers of justice. Therefore, in the interest of democracy, the executive should have a say in judges’ appointment which would also infuse transparency into the process.
No other country has a system similar to the collegium, under which the job of appointing judges is given exclusively to the judiciary. The commission system exists in the UK, South Africa, Russia, Canada, Sri Lanka and Japan.
Also, the political class is unable to accept the fact that the judiciary has taken away the power given to it under the Constitution.
The UPA government had initiated the JAC proposal following demands in the wake of allegations of misconduct levelled against the then Karnataka High Court Chief Justice PD Dinakaran and Calcutta High Court Judge Soumitra Sen. Faced with impeachment in Parliament for their removal, both of them quit.
At the same time there is a view that given the political situation in the country, letting the executive have a say would be detrimental to the independence and integrity of the judiciary.
Practice since Independence
Generally, the government initiated the move to appoint judges and consulted the judiciary at various stages, giving primacy to the CJI. Barring the Emergency period, the CJI’s concurrence was not taken only in a few cases of appointment.
In 1982, a seven-member Constitution Bench of the Supreme Court clarified (in the SP Gupta case) that “consultation” did not mean “concurrence”. It also ruled that the concept of CJI’s primacy was not found in the Constitution. It held that the proposal for appointment of high court judges could emanate from any of the constitutional functionaries, not necessarily the high court CJ, tilting the balance in favour of the executive.
As a result, the importance of the CJI and the role of the judiciary in judges’ appointment started diminishing. But the 1993 apex court verdict set aside the ruling in the SP Gupta case. Another nine-judge Bench delivered a unanimous verdict in 1998, reaffirming the 1993 ruling and expanding the Supreme Court collegium to the present strength of five — the Chief Justice of India and four senior-most judges.
The Bar wants the JAC to include representatives of the Bar Council of India and State Bar Councils and Bar Associations.
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‘Widen consultation’
Comprising the Chief Justice of India (CJI) and four senior-most judges of the Supreme Court, the collegium’s recommendations on appointments are binding on the Centre and thereby on the President, the appointing authority. The collegium picks up candidates for elevation as SC judges from among high court chief justices, judges and senior advocates and forwards their names to the Centre.