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September 27, 2013

Going nowhere

The government’s legislative proposals for overhauling the judicial appointment process promise much but deliver little.

Two Bills were introduced in the Rajya Sabha during the monsoon session that are likely to have far-reaching effects on the Indian judiciary. These Bills (the 120th Constitutional Amendment Bill and the Judicial Appointments Commission Bill) seek to alter the process of selection of judges to the higher judiciary. The Constitutional Amendment Bill creates a new independent authority under the Constitution, the Judicial Appointments Commission (JAC), and tasks it with the responsibility of recommending to the President names for appointment as judges of the Supreme Court and the High Court. The JAC Bill, in furtherance of this amendment, sets out the composition and functioning of the JAC.

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The existing procedure for appointment of judges to the Supreme Court and the high courts is governed by Articles 124 and 217 of the constitution, respectively. Worded similarly, both these provisions state that Judges shall be appointed by the President of India in consultation with the Chief Justice of India. Originally, the President exercised full power and the opinion of the Chief Justice was only recommendatory. Subsequently, the Supreme Court, concerned about increasing executive control over the judicial appointment process, re-interpreted the term ‘consultation’ to mean the concurrence of the Chief Justice and the four next senior-most judges of the Supreme Court. This group of Judges, referred to as the ‘Collegium’ – which controls judicial appointments today – is entirely the creation of the Supreme Court through two of its judgments, delivered in 1993 and 1998, with no independent legal or constitutional backing.

The system of appointments through the collegium is opaque, because there are no publicly available criteria on the basis of how judges are selected. Of course, the documentation around individual appointments is also kept confidential, so there is no way of knowing whether any of these criteria, even if they exist, have actually been complied with, or why particular candidates are selected as judges while others are not. The RTI Act is not of much help either, because a decision on its applicability to administrative proceedings at the Supreme Court is currently pending. There is also a lack of oversight, since the collegium is accountable to no one but itself, and the requirement of concurrence means that there is no way around it. This lack of accountability has resulted in numerous unpleasant incidents, and much speculation and scandal around judicial appointments that could have easily been avoided had a more transparent process been followed.

The cumbersome procedure involved in appointments through the collegium also means that courts remain plagued with a shortage of judges. As of September 2013, three of the 31 posts of judges in the Supreme Court—about one-tenth of its total strength—were vacant.  Across the High Courts, this figure is 287—nearly one third of the sanctioned 906 posts. In a judiciary that is already struggling with a massive backlog of cases, this is a crippling burden that it simply cannot afford to continue carrying.

In this context, the JAC Bill claims to have noble intentions – to “broad base the appointment process and make it more participatory to ensure greater transparency and objectivity in the appointments to higher judiciary”, according to its Statement of Objects and Reasons. However, the devil, as always, is in the details. Unfortunately, as has been the case with several instances of recent legislation, a closer examination of the bill reveals that the government’s good intentions have been laid to waste by ill-thought out implementation.

The bill sets up a JAC comprised of the Chief Justice of India, the next two senior-most judges of the Supreme Court, and the Union Law Minister as ex-officio members, and two other “eminent persons” to be nominated by a ‘collegium’ comprising the Prime Minister, Law Minister and the Leader of the Opposition in the Lok Sabha. The Bill does not specify who qualifies as an “eminent person”, and surprisingly, despite the fiasco over the appointment of the CVC by a similar ‘collegium’ not too long ago, does not provide any safeguards to avoid a repeat of such a situation. Further, there is nothing to indicate that the proceedings of the JAC will be open, or that its records will be public. For all its claims of ensuring objectivity and transparency, the bill delivers neither.

The most serious problem with the bill, however, is that it delegates excessive power to the JAC. The constitutional provision providing for establishment of the JAC (Article 124A, proposed to be inserted by the Constitutional Amendment Bill), clearly empowers parliament alone to specify the manner of selection of persons for appointment as judges. The JAC Bill, however, states that the process for recommendation and short-listing of names by the JAC will be determined through regulations issued by the JAC itself. Besides being legally impermissible, this is a dangerous ceding of power to an executive body and seriously undermine judicial independence—the very reason cited by the Supreme Court when it established the Collegium in 1993. Given that the legal fraternity has already raised objections to the JAC in its proposed form, there is every likelihood of the bill being challenged, and going by precedent, it seems unlikely to withstand legal scrutiny by the Supreme Court—taking matters back to square one.

There is a near-unanimous consensus that the existing system of judicial appointments is flawed. The Law Commission of India, former judges, practising lawyers and academics alike have recommended scrapping the collegium and putting in place a mechanism that is participative, transparent and maintains the independence of the judiciary. Unfortunately, the JAC Bill achieves none of these.

Postscript: A numbering error prevented the Constitutional Amendment Bill from being introduced in the Lok Sabha in the monsoon session, and Law Minister Kapil Sibal was forced to apologise to the House. One hopes that he will realise that numbering is the least of the problems with the proposed legislation.

Photo: SalFalco


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