On August 13, 2014, the Lok Sabha passed the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 seeking amendments to Articles 124, 127, 128, 217, 222, 224 and 231 of the Constitution of India and the National Judicial Appointments Commission Bill (NJACB). The bills seek to change the manner in which judges of the high courts and Supreme Court are appointed in India. This has been accompanied by a lot of exchanges between supporters of the earlier system of appointments to the higher judiciary and those rooting for the new system.

 

In recent years, virtually all arms and institutions of the state have become increasingly discredited in the eyes of the people. The life experience of the people has led them to understand that money power plays a very important role in the legal system and they have very little chance of getting justice within any reasonable length of time. The judiciary is known to be very arbitrary. On the other hand various judges are known to have been corrupt but it is almost impossible even for Parliament to remove a judge proven to be corrupt. The judiciary is thus another arm of the state begging to be “cleaned up” so that its credibility can be restored in the eyes of the people.

Historically the judiciary in India has played crucial roles in the formulation of laws by parliament and their application as well as on executive actions. When land reforms were being enacted in the 1950s by the governments at the centre and states, the land owning classes moved the courts to attempt to stymie their implementation. The government in turn had to move to amend the constitution through the parliament and state legislatures to safeguard its powers. In the 1970s, the then Prime Minister Indira Gandhi was unseated from her parliament seat by a judgement of a High Court, an action which contributed to the promulgation of the notorious national emergency. During this period even the normal rights and liberties granted under the law were suspended and the executive moved to have tighter control over the appointments to and actions of the judiciary. Several judges were superseded while appointing the Chief Justice and installing what was called a “committed” judiciary; i.e. a judiciary committed to the ideals professed by the government of the day. After the deaths of Indira Gandhi and later Rajiv Gandhi, the country saw a period of coalition governments, which were intrinsically weaker.

During this period the relative clout of the judiciary grew with respect to previous periods grew considerably. The judiciary intervened increasingly not just in the interpretation but also in the implementation of laws and even gave its own instructions on various matters which it asked the executive to implement, something that was termed by some commentators as “judicial overreach”. This is also the period when the judiciary sought to curtail the say of parliament and the executive in making appointments to the higher judiciary or even to their transfers.

In recent years, the rivalries between various monopolies and regional groupings of the powerful economic interests have increased very sharply. It has been seen that the biggest groups try might and main to ensure that ministers who are appointed at the central and state levels are favourably disposed towards them. It must be noted that the judiciary plays an important role in adjudicating between these sections and groupings. They have made very important decisions with very far – reaching consequences for example in respect of allocation of natural resources like land and spectrum. The higher judiciary (judges of the Supreme Court and High Courts) also adjudicates over actions of parliament and executive including on the supposed constitutional and other validity of the laws passed. Thus, control over making appointments to the higher judiciary has been a point over which various arms of the state and groupings of powerful economic interests have been tussling over the years.

Appointments to the higher judiciary in India are presently made through a “collegium” system. Under this system, appointments and transfers of judges are decided by a forum comprising the Chief Justice of India and the four senior most judges of the Supreme Court. This effectively means that neither parliament nor the executive has any effective control over these crucial appointments. It is thus no surprise that the parliament and executive in India are moving to have some control over these, by passing the bills mentioned. There is no mention of the collegium either in the original Constitution of India or in successive amendments. Article 124 of the Constitution, dealing with the appointment of Supreme Court judges, says the appointment should be made by the President after “consultation with such judges of the high courts and the Supreme Court as the President may deem necessary”. However in October 1993 a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs. Union of India case (also called the ‘Second Judges Case’) said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments and denied the executive “an equal say” in the matter of judicial appointments.

Thereafter the collegium system of appointments came into being. Essentially it ensured that the appointments of judges of the High Courts and Supreme Court were done by senior judges only, in a thoroughly arbitrary and inscrutable manner over which neither parliament nor any other institution of the state has any control.

India is perhaps one of the few countries where judges are appointed essentially by the judiciary itself. In the US, judge selection is entirely a political process either by the legislature or in some cases by elections in which existing judges have no say. In Britain (for England and Wales), the appointments are done by a 15-member Judicial Appointments Commission, among whom only five are judges. The chairman of the JAC in Britain is a lay person, and not a judge.
The collegium system of judicial appointments which the Chief Justice of India understandably has said must not be changed has been proven itself to be a thoroughly nepotistic and corrupt system. The appointment and rejection of judges through the collegium system had been marred by personal preferences and rivalries of those selecting/appointing the judges. Many judges who are known to be openly corrupt have also been selected by this system. In any case, the actions of the judiciary over the last few years have been very much in defence of vested interests, anti-labour and anti-people by and large.

The two bills passed by the Lok Sabha in the middle of August 2014 will become law if ratified by the Rajya Sabha (the Constitution Amendment Bill needs to be ratified by 15 states too). The National Judicial Appointments Commission to be set up as a result would henceforth be responsible for appointing judges to the Supreme Court and High Courts. Apart from the Chief Justice of India serving as ex-officio chairperson, two other senior Judges of the Supreme Court next to the Chief Justice of India and the Union Minister in charge of Law and Justice, two “eminent persons” to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the Lok Sabha are supposed to make up this Commission. This commission will be responsible both for appointment of judges to the Supreme Court and High Courts as well as for transfers between these courts. The intent of parliament is clearly to gain a say in the appointment of the higher judiciary, which it claims was the original intent of the constitution’s makers.

There is no doubt that the collegium system of judicial appointments is thoroughly unfair, arbitrary and should be replaced. But what should its replacement be? The replacement suggested by the parliament may well bring the process of judicial appointments in line with the “original intent” of the makers of the constitution of India. But the constituent assembly itself did not derive its power from the people of India. It represented the interests of the propertied classes. The NJAC will give parliament and the executive a say in the appointment of judges, something which the judiciary wrested away from them over 20 years ago. The crucial question for the people is however – does it give them any say?

The answer is a resounding NO. The NJAC merely restores certain privileges to the executive that had been surrendered to the judiciary two decades ago. The existing system of government attempts to present itself as one having “checks and balances”. The legislature is chosen by election once in a few years, but it is the cabinet which has the real power of the executive. The judiciary is presented as an arm which is supposed to regulate parliament and the executive to ensure that they function fairly and justly, within the ambit of the “law of the land”. However it is clear that the very law which the judiciary upholds is the continuation of colonial law based on private property and it clearly permits the exploitation of natural and human resources. It is apparent that it is not designed to provide justice to the ordinary people; something which the life experience of the people has proved time and again.

Since the 20th century, people have discovered and implemented new forms of government and new methods of implementing the laws and administering justice. For example, in the 40s of the last century in the Soviet Union, they moved from a talk shop parliament, indulging in debates intended to fool the people, to toilers committees and Soviets who are not merely responsible for enacting laws but to implement them as well. They had introduced the concept of a combined legislature and executive whose members were not only elected from amongst the people but are paid workmen’s wages. Judges too were elected from amongst the working people, and with their rich experience of life and innate sense of justice they were able to resolve disputes and adjudicate on critical matters calmly and quickly. Even today, “lay” judges and laymen (juries) play an important role in the administration of justice in many countries.

The people of India need a legal system which will cater to their needs – for securing their rights as human beings, to ensure that they have access to health and education, to ensure the right to conscience, to secure their national rights and so on. They need a judiciary that is not self-serving and is answerable to them, not merely to the Executive. Only then will it be possible to legally secure their rights as human beings, as toilers, as nations. We need a system of appointments of judges that serves the interests of the people as a whole. The question of appointments to the judiciary is thus a question of sovereignty. The people have to strive to ensure that sovereignty vests in the people of India, not in the parliament or executive. In fact, judiciary, parliament and executive must all be controlled by the people!

by Dr. Venkatesh

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