Freedom and independence of the judiciary have been taken to mean, (a) that both the institution of the judiciary and independent judges are separate and free from interference by the other branches of the government (executive and legislature), political parties, other powerful interests or individuals; and (b) that the individual judge or magistrate is independent and at liberty to make a decision without pressure, inducement or promise from any source whatsoever. An independent judiciary must not only be independent but also appear to be independent.
Article 124 vests the president with the power to appoint the chief justice of India (CJI) and judges to the Supreme Court. It is stipulated that the president shall appoint a judge of the Supreme Court after consultation with such of the judges of the Supreme Court and of the high courts as the president may deem necessary. The appointment of judges of the high courts is also made by the president. The president has to consult the CJI, the governor of the state and the chief justice of the high court.
The issue of the appointment and removal of judges was examined by the National Commission to Review the Working of the Constitution chaired by M.N. Venkatachaliah. The commission recommended the constitution of a national judicial commission, which would have the effective participation of both the executive and the judicial wings of the state “as an integrated scheme for the machinery for appointment of judges”
The government introduced the Constitution (98th Amendment) Bill in the Lok Sabha in 2003. This bill sought to create a national judicial commission (NJC) headed by the CJI with two judges of the Supreme Court next to the CJI in seniority, the Union minister for law and justice and one eminent citizen to be nominated by the president in consultation with the prime minister, as members.
The Second Administrative Reforms Commission is of the view that the appointment of judges to higher courts should be with the participation of the executive, legislature and the chief justice, and should be a bipartisan process above day-to-day politics. Therefore, the proposed NJC should comprise representatives of all three organs of the state — the legislature, the judiciary and the executive. Such a body can devise its own procedures in identifying and screening candidates for the higher judiciary.
If we consider the international practice for the appointment of judges to supreme courts in various countries like the UK, US, France or Germany, they are found to be appointed by political executives, senates or presidents of republics, or by elected bodies. It is only in our country that, with the system of the collegium, the class of judges appoint themselves.
Ruma Pal, a former Supreme Court judge, has said that the process by which a judge is presently appointed to the high court or the Supreme Court is “one of the best kept secrets in the country”. V.N. Khare points out that prior to 1993, when the primacy vested with the executive, eminent judges were still appointed to the high courts and the Supreme Court.
Parliament last week passed a constitutional amendment bill to provide for the National Judicial Appointments Commission (NJAC), which proposes to radically change the process of appointment of judges by giving both the judiciary and the executive equal say and veto power. The NJAC is mandated to appoint judges of the Supreme Court and the chief justice and judges of the high courts. It is also empowered to initiate transfers of high court judges.
The six-member NJAC will comprise the CJI, the two senior-most judges of the Supreme Court, the Union law and justice minister and two eminent persons. The choice of eminent persons will be made by a high-powered committee composed of the prime minister, the CJI and the leader of the opposition or the leader of the largest party in opposition. The two eminent persons will have a tenure of three years, and one will be a woman, or from a Scheduled Caste, Scheduled Tribe or minority community.
In an important improvisation on earlier drafts of the NJAC, the bill provides that no name opposed by two or more of the six-member body can go through. A name recommended for appointment as judge to the Supreme Court or the high courts can be returned to the NJAC by the president for reconsideration. The bill also provides for wider consultation with Bar bodies, senior advocates and eminent persons by the collegium of the high court before recommending a name for consideration by the NJAC in appointments to the high court. In an important addition, the bill also requires that the NJAC, before recommending a name for appointment as judge of a high court, take the views of the concerned state governor and chief minister in writing.
As Upendra Baxi wrote in his contribution earlier (‘Change must respect basic structure’, IE, August 8): “The basic structure here is the independence of the judiciary and judicial review. It is this power that ultimately decides the essential features of the Constitution. Appointments and transfers of justices definitely affect the basic structure, and the court should have a say in it. The executive may present evidence before the justices on why the judicial architecture needs to be reformed, and how the judicial collegium has failed the nation. Since almost all the leaders of the Bar believe that the judicial collegium has failed in drawing the best and brightest to become justices, they should have little difficulty in persuading the court… Even under Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC [judicial appointments commission] without consulting the court may invite judicial wrath, and even lead to a constitutional crisis.” The Kesavananda Bharti verdict firmly established the judiciary as the ultimate arbiter of which provision/ law/ act violates the Constitution and which will pass muster.
There is a consensus that the NJAC be considered an instrument to replace the existing collegium system, obviously without compromising the independence of the judiciary or giving the executive superseding authority. But the way in which the NDA government has handled the constitutional amendment bill has set up a series of confrontations between the political executive and the judiciary. This could have been avoided by taking the judiciary into confidence. Still, it is not too late to have a proper reconciliation between the judiciary and the executive.
The writer was Union law minister from May 2009 to 2011
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