THE CONSTITUTION (120TH AMENDMENT) BILL, 2013, AND THE JUDICIAL APPOINTMENTS COMMISSION BILL, 2013

APPOINTMENT OF JUDGES TO THE SUPREME COURT- PRESENT SYSTEM

Constitutional provision:

Article 124(2): Clause (2) of Article 124 inter alia says that:

“every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief  Justice, the Chief Justice of India shall always be consulted.”

Under our constitutional scheme, the President is the constitutional head. In exercise of the powers vested in him by the Constitution, he acts upon the aid and advice of Union Council of Ministers.  So far as the executive power of the Union is concerned, it is exercised by the Union Council of Ministers in the name of the President.

Clause (2) of Article 124 speaks of ‘consultation’, whether it be with the Chief Justice of India, Judges of the Supreme Court or with the Judges of the High Court. The expression is not “concurrence”.

Practice followed till 1981: A practice had developed over the last several decades according to which the Chief Justice of India initiated the proposal, very often in consultation with his senior colleagues and his recommendation was considered by the President (in the sense explained hereinabove) and, if agreed to, the appointment was made.  By and large, this was the position till 1981.

Collegium of judges: In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta vs. Union of India, the majority held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries (President, Chief Justice of India, the Governor of the State, the chief Justice of the High court) mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court. This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment.  The balance tilted in  favour of the executive.  Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less.  After this judgment, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India.  Naturally, this state of affairs developed its own backlash.

Advocates-on-Record Association Vs. Union of India case

• In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India over-ruled the decision in S.P.Gupta.
• The nine-Judge Bench (with majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.”
• For the same reason, the primacy of the Chief Justice of India was held to be essential.  It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive.
• In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal.  The 1993 decision was reaffirmed in 1998 in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution.  All the basic conclusions of the majority in the 1993 decision were reaffirmed.  There was, however, some variation.  It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to which the proposed name comes from must also be consulted.  In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court.

THE CONSTITUTION (120TH AMENDMENT) BILL, 2013, AND THE JUDICIAL APPOINTMENTS COMMISSION BILL, 2013

• The former CJIs M.N. Venkatachaliah and the late J.S. Verma; the retired Supreme Court judge, Justice Ravindaran, and Professor Madan Gopal expressed concern over the appointments made to the High Courts under the present collegium system in which, they said, lobbying was rampant and the most eligible were often ignored.  They strongly advocated the setting up of a JAC to select eligible and meritorious candidates as High Court judges
• The Judicial Appointments Commission Bill, 2013, seeks to reform the appointment of High Court and Supreme Court judges by establishing a Judicial Appointments Commission (JAC). Simultaneously, a constitutional amendment providing for the recommendation of the JAC for appointment of judges to the government is proposed to be made by the Constitution (120th Amendment) Bill, 2013.
• The proposed Bill provides for the constitution of the Judicial Appointments Commission,  comprising of —(a) the Chief Justice of India, an ex officio Chairperson; (b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority as ex officio Members; (c) the Union Minister in charge of Law and Justice as ex officio Member; and (d) two eminent persons, to be nominated by the collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People, as members.
• The JAC would recommend to the government persons for appointment to the offices of Chief Justice of India, judges of the SC, chief justices of the high court and other judges of the high court.
• The proposed Bill would enable equal participation of Judiciary and Executive, make the system of appointments more accountable, and thereby increase the confidence of the public in the institutions.

Modelled on the U.K. Judicial Appointment Commission- Why?

• The proposed JAC in India is modelled on the U.K. Judicial Appointment Commission. The U.K. JAC, in contrast, expressly excludes politicians and those connected with politics from being part of the JAC. This is done in order to secure the independence of the judiciary.
• There are several models to choose from. But seeking a broader collegium on the lines of the United Kingdom Model needs a serious exploration.
• The appointments procedure in the United States is far too politicised: it requires politicians to both nominate and approve appointments. The intense political manoeuvring in the U.S. system has created a phenomenon “where judges rarely oppose outcomes that are philosophically in accordance with the party which nominated and confirmed them.”
• In Germany, the U.S. system of political partisanship is whittled down by the requirement of a two-thirds majority for the approval of a candidate.
• Therefore, the candidate must necessarily be acceptable to divergent political segments and hence the chances of political partisanship are eliminated to a great extent.
• South Africa’s Judicial Services Commission is highly politicised. With 15 politicians and eight lawyers, it has the ingredients necessary for the erosion of judicial independence.
• The JAC of the U.K. has a clear edge to secure the independence of the judiciary as its composition is dominated by non-politicians.

There are also serious defects in the proposed legislation.

1) The JAC has the Chief Justice of India and two senior most judges. Then there is the Law    Minister and two “eminent persons,” bringing the non-judicial component to three out of six members.

• The selection of eminent persons risks the taint of political appointments, given the fact that the selection is made by the Prime Minister and the Leader of the Opposition constituting a total of two, and reducing the judicial component consisting of the Chief Justice to one.

2) The constitutional amendment bill, which provides the constitutional support for the JAC  bill, does not incorporate the composition of the JAC.

• The composition of the JAC has to be entrenched in the Constitution itself; otherwise it could be subject to changes by any ordinary law by the government of the day. This is also the view of the standing committee.

3) The JAC is vested with the power to recommend persons for appointment of the Chief Justice of India — which means the rule of seniority has been given the go-by.

• Every eligible senior judge will now face a direct threat to being superseded from being appointed as Chief Justice.

4) To seek the opinion of the government and the Chief Minister of the State in the appointment process again raises the risks of political appointments — which in turn jeopardises independence.

5) Under the JAC bill, the JAC has been entrusted with the formidable task of not only appointing 31 SC judges, but over 800 judges in 24 high courts.

• To be effective, such a commission has to be a full-time institution.
• It is impossible for it to operate part-time with ex-officio judges of the SC, who have full-time court work, and the law minister, who has other duties, in charge.
• In the UK, the judicial appointments commission has 15 commissioners and is a permanent institution working day-to -day with a large secretariat to support it

6)  Under the JAC bill, the JAC would have the onerous task of appointing SC judges as well as the high court.

• As the criteria for selection for SC judges is different from that of high court judges, and considering the importance of SC judges, there should be a separate commission for appointments to the SC, as in the UK.

7) A serious lacuna in the bill is that the selection of judges is to be determined by regulations made by the commission to “shortlist” candidates.

• There is no indication of how candidates will be shortlisted and by whom.
• In the absence of definite objective criteria, the shortlisting could be highly subjective and even arbitrary. This has also been noted by the standing committee in its report.
• The standing committee has suggested public notifications be issued inviting applications for appointment to the post of judges of the high court, as is the practice in the UK. However, this is unlikely to work well in India.
• Advertising for a judicial post is likely to deter well-qualified candidates from accepting appointments because they will be apprehensive of the impact a rejected application could have on their reputation.

8)  In the UK, next to the consideration of merit for appointment as a judge, the JAC considers diversity of appointments with respect to appointment of women and judges from different communities.

• This is an important consideration, which is absent from the JAC bill. The bill only requires the JAC to recommend persons of “ability, integrity and standing in the legal profession”, with no regard to diversity.

• Responding to the criticism, the Parliamentary Standing Committee on Law and Justice has recommended that the structure and functions of the Judicial Appointments Commission (JAC) — which will replace the present collegium system — be mentioned in the Constitution itself so as to protect the basic structure of the Constitution.
• The committee suggested that there should be three eminent persons in the commission, instead of only two as provided for in the Bill. At least one of the three members should be from SC/ST/OBC/women/minority, preferably by rotation.
• It has  also suggested the government to consider the feasibility and practicability of creation of a State-level commission so as to reduce the JAC’s  responsibility to select 800-odd judges of 24 High Courts
• The committee wants the government to incorporate amendments in the Bill as suggested by it.

 Conclusion:

• The JAC opens up the selection process, giving the executive, legislature and citizens greater say while maintaining the primacy of the judiciary. It balances diverse interests, making it difficult for any one group to railroad its preferences. But to be a truly worthwhile improvement, the JAC should also lay out clear criteria for the shortlist and for final selection. Given the magnitude of its responsibility, it should also have the infrastructure and ability to seek full information about prospective judges, including public feedback