A clean judiciary is a constitutional imperative for any working democracy
States should have a say in any major constitutional amendment concerning the judiciary
EQUAL ROLE:It is erroneous to conceive the issue of judicial appointment
as a tussle between the executive and the judiciary for a final say in
the process of selection to the higher judiciary. Picture shows the
Madras High Court.— PHOTO: V. GANESAN
The Supreme Court has dismissed a few writ petitions
challenging the constitutional validity of the Constitution (99th
Amendment) Bill and the National Judicial Appointments Commission Bill,
2014 (NJAC Bill). The judgment is correct, but not for the reason that
the Bills are faultless. The Bills are yet to attain the status of law
as defined under Article 13 of the Constitution. A premature opposition
to the legislative move is antithetical to the facets of deliberative
democracy. Article 111 of the Constitution empowers the President to
return the Bills for reconsideration, which implies the possibility for
modifications. Article 368 says an amendment of the Constitution could
be done generally when a Bill is passed by “a majority of not less than
two thirds of the members present and voting” in each House. Proviso to
Article 368(2) clarifies that in certain cases, ratification by the
legislatures of at least one half of the states is mandatory. The Union
judiciary and the High Courts in the States come within the ambit of
this proviso. This would mean that in a federal system, despite the
clearance by Parliament, States do have a say in any attempt for a major
constitutional amendment concerning the judiciary. It is therefore
incorrect to think that the Bills mark an end in themselves. As such,
there is scope for further debate and a need for it.
challenging the constitutional validity of the Constitution (99th
Amendment) Bill and the National Judicial Appointments Commission Bill,
2014 (NJAC Bill). The judgment is correct, but not for the reason that
the Bills are faultless. The Bills are yet to attain the status of law
as defined under Article 13 of the Constitution. A premature opposition
to the legislative move is antithetical to the facets of deliberative
democracy. Article 111 of the Constitution empowers the President to
return the Bills for reconsideration, which implies the possibility for
modifications. Article 368 says an amendment of the Constitution could
be done generally when a Bill is passed by “a majority of not less than
two thirds of the members present and voting” in each House. Proviso to
Article 368(2) clarifies that in certain cases, ratification by the
legislatures of at least one half of the states is mandatory. The Union
judiciary and the High Courts in the States come within the ambit of
this proviso. This would mean that in a federal system, despite the
clearance by Parliament, States do have a say in any attempt for a major
constitutional amendment concerning the judiciary. It is therefore
incorrect to think that the Bills mark an end in themselves. As such,
there is scope for further debate and a need for it.
A failed experiment
The
collegium is not just a failed experiment, but has also been
undemocratic. Therefore, the real issue is whether the proposed
amendment by way of Article 124A, B and C would really democratise the
method of appointment. It is erroneous to conceive the issue of judicial
appointment as a tussle between the executive and the judiciary for a
final say in the process of selection to the higher judiciary. The
present Bill is designed in such a way that both the judiciary and the
executive have a role in the process. It is generally perceived that
just two members can veto the majority decision in the NJAC and
therefore the mechanism is defective. I would, however, say that this is
a scientific device to oust the ineligible — provided the system is
fair and transparent.
collegium is not just a failed experiment, but has also been
undemocratic. Therefore, the real issue is whether the proposed
amendment by way of Article 124A, B and C would really democratise the
method of appointment. It is erroneous to conceive the issue of judicial
appointment as a tussle between the executive and the judiciary for a
final say in the process of selection to the higher judiciary. The
present Bill is designed in such a way that both the judiciary and the
executive have a role in the process. It is generally perceived that
just two members can veto the majority decision in the NJAC and
therefore the mechanism is defective. I would, however, say that this is
a scientific device to oust the ineligible — provided the system is
fair and transparent.
But the system is not supposed
to be transparent, going by the text of the proposed amendment.
Functionally and structurally, the NJAC would perpetuate many of the
basic deficits and perils of the collegium in a different manner. A
secret process without any benchmark that does not even accept the need
for assessment of
inter se
merit would be constitutionally legitimised. No discussions, no
notifications, no applications, no interviews, no consultations and
ultimately no democratisation either in the process or in the
institution. Openness and transparency are the
sine qua non
for any fair method of selection.
to be transparent, going by the text of the proposed amendment.
Functionally and structurally, the NJAC would perpetuate many of the
basic deficits and perils of the collegium in a different manner. A
secret process without any benchmark that does not even accept the need
for assessment of
inter se
merit would be constitutionally legitimised. No discussions, no
notifications, no applications, no interviews, no consultations and
ultimately no democratisation either in the process or in the
institution. Openness and transparency are the
sine qua non
for any fair method of selection.
Conceptual flaws
There
is a serious conceptual flaw with the present legislative design. An
uncomfortable dichotomy between the constitutional provision and
statutory scheme emerges through the new move. While the 99th
Constitution Amendment Act would create space for the new NJAC, its
composition and voting pattern are designed not by the amended
Constitution, but by a statute, namely the NJAC Act. This would indicate
that even the sole advantage of the NJAC i.e., the requirement for
support of five out of the six members for a valid selection is
vulnerable to statutory amendment by a simple majority in Parliament.
Thus, even without a constitutional amendment, the limited virtues of
the proposed NJAC would be taken away.
is a serious conceptual flaw with the present legislative design. An
uncomfortable dichotomy between the constitutional provision and
statutory scheme emerges through the new move. While the 99th
Constitution Amendment Act would create space for the new NJAC, its
composition and voting pattern are designed not by the amended
Constitution, but by a statute, namely the NJAC Act. This would indicate
that even the sole advantage of the NJAC i.e., the requirement for
support of five out of the six members for a valid selection is
vulnerable to statutory amendment by a simple majority in Parliament.
Thus, even without a constitutional amendment, the limited virtues of
the proposed NJAC would be taken away.
Federalism is a
basic feature of the Indian Constitution as held by the Supreme Court
in S.R. Bommai (1994). On account of the NJAC, it is not the “basic
feature” of judicial independence that is endangered, as is widely
misconceived. The judiciary and the executive at the centre will
annihilate even the limited role for the States in the selection process
in the High Courts. Going by the text of Article 217 of the
Constitution, even after its alteration by the Supreme Court in the
Second Judges case (1993) and Third Judges case (1998), the Governor of
the State and the collegium at the High Court level have a participative
role in selection of judges in the High Courts. In the system now
proposed, the NJAC or the President of India is not bound by the
recommendation of the Chief Justices of the High Courts or the
Governors. Section 6(4) of the NJAC Bill envisages consultation with
senior-most judges and eminent advocates in the High Courts. But their
opinion is not binding on the NJAC. Section 6(7) says the views of the
Governor will be elicited but, again, those are not binding. Thus those
at the Centre, through the NJAC, will select the High Court Judges,
despite their lack of familiarity with the institutions of High Courts
and lack of State-level mechanism for an open system for assessment of
individual merit. This nullifies the constitutionally guaranteed federal
traits in the realm of judicial appointments.
basic feature of the Indian Constitution as held by the Supreme Court
in S.R. Bommai (1994). On account of the NJAC, it is not the “basic
feature” of judicial independence that is endangered, as is widely
misconceived. The judiciary and the executive at the centre will
annihilate even the limited role for the States in the selection process
in the High Courts. Going by the text of Article 217 of the
Constitution, even after its alteration by the Supreme Court in the
Second Judges case (1993) and Third Judges case (1998), the Governor of
the State and the collegium at the High Court level have a participative
role in selection of judges in the High Courts. In the system now
proposed, the NJAC or the President of India is not bound by the
recommendation of the Chief Justices of the High Courts or the
Governors. Section 6(4) of the NJAC Bill envisages consultation with
senior-most judges and eminent advocates in the High Courts. But their
opinion is not binding on the NJAC. Section 6(7) says the views of the
Governor will be elicited but, again, those are not binding. Thus those
at the Centre, through the NJAC, will select the High Court Judges,
despite their lack of familiarity with the institutions of High Courts
and lack of State-level mechanism for an open system for assessment of
individual merit. This nullifies the constitutionally guaranteed federal
traits in the realm of judicial appointments.
The
NJAC thus needs to be restructured and its procedure revamped. Before
ratifying the Bills mechanically, it is for the State legislatures to
seriously ponder over the matter, for the issues are closely associated
with the state’s role in the appointment process.
NJAC thus needs to be restructured and its procedure revamped. Before
ratifying the Bills mechanically, it is for the State legislatures to
seriously ponder over the matter, for the issues are closely associated
with the state’s role in the appointment process.
The
illustrative case of the U.K. needs to be emphasised in the Indian
scenario, for it shows how the federalist values are incorporated both
in the structure of the Commission and in the procedures adopted. The
Constitutional Reforms Act (CRA), 2005 in the U.K. was substantially
altered by way of the Amendment in 2013. At present, there is a
15-member Commission doing the job of selection of judges to the higher
judiciary and tribunals. Selection commences with an open vacancy
notification.
illustrative case of the U.K. needs to be emphasised in the Indian
scenario, for it shows how the federalist values are incorporated both
in the structure of the Commission and in the procedures adopted. The
Constitutional Reforms Act (CRA), 2005 in the U.K. was substantially
altered by way of the Amendment in 2013. At present, there is a
15-member Commission doing the job of selection of judges to the higher
judiciary and tribunals. Selection commences with an open vacancy
notification.
It is again a paradox that despite the
promise for equality of opportunity in public employment guaranteed
under Articles 14 and 16 of the Constitution, an eligible person in
India cannot apply for judgeship in higher judiciary. Nor is there any
system of open nomination. In the U.K., the concept of equal opportunity
is not alien to judicial appointments. The notification is followed by a
series of statutory consultations. The criteria for appointment as a
Supreme Court judge are indicated in Sections 50 to 52 of the statute.
The Appointment Commission has a participative, representative and a
democratic character. England and Wales, Scotland and Northern Ireland
are properly represented in the process of consultation.
promise for equality of opportunity in public employment guaranteed
under Articles 14 and 16 of the Constitution, an eligible person in
India cannot apply for judgeship in higher judiciary. Nor is there any
system of open nomination. In the U.K., the concept of equal opportunity
is not alien to judicial appointments. The notification is followed by a
series of statutory consultations. The criteria for appointment as a
Supreme Court judge are indicated in Sections 50 to 52 of the statute.
The Appointment Commission has a participative, representative and a
democratic character. England and Wales, Scotland and Northern Ireland
are properly represented in the process of consultation.
Federalism
is, therefore, not just a matter of Centre-State relation. It is, on
the other hand, a device to ensure participative role for the
representatives of the States constituting the nation, in the
decision-making process. The larger the body, the greater the democratic
content. In a vast country like ours, a six-member committee is
undemocratic due to its centralist features. Even the laymen are part of
the Commission in the U.K. It is no more an employment generation
scheme. Continued and repeated consultations and screening in the
British system ensure that no ineligible hand is inducted to the higher
judiciary. The only valid criticism against the method in the U.K is
that selection becomes a time-consuming process. But there is no
allegation of judicial corruption. Nor is there allegation of sycophancy
or nepotism. India too can afford such procedural fairness, for the
same would ensure a clean judiciary, which is a constitutional
imperative for any working democracy. But the Bills in their present
form are conceptually sterile and incapable of bringing in radical
reforms. This situation calls for dynamic legislative activism at all
levels.
is, therefore, not just a matter of Centre-State relation. It is, on
the other hand, a device to ensure participative role for the
representatives of the States constituting the nation, in the
decision-making process. The larger the body, the greater the democratic
content. In a vast country like ours, a six-member committee is
undemocratic due to its centralist features. Even the laymen are part of
the Commission in the U.K. It is no more an employment generation
scheme. Continued and repeated consultations and screening in the
British system ensure that no ineligible hand is inducted to the higher
judiciary. The only valid criticism against the method in the U.K is
that selection becomes a time-consuming process. But there is no
allegation of judicial corruption. Nor is there allegation of sycophancy
or nepotism. India too can afford such procedural fairness, for the
same would ensure a clean judiciary, which is a constitutional
imperative for any working democracy. But the Bills in their present
form are conceptually sterile and incapable of bringing in radical
reforms. This situation calls for dynamic legislative activism at all
levels.
