PUCL Bulletin,
July 2003
Letter to the Editor
Constitutional
amendment bill will curtail judicial independence
-- By Ravi Kiran Jain
A constitution amendment bill was introduced in the Lok Sabha on May 8,
being its last working day this month, it will come up for passage by
Parliament during its monsoon session. The objective of the Bill is to
create a National Judicial Commission (NJC) for appointment of Supreme
Court Judges, for appointment and transfer of High Court Judges, and to
create a mechanism through which the NJC will discipline the erring Judges.
On the face of it, the Union Law Minister's move to introduce the Bill
appears innocuous; this at least is the impression he has sought to generate
by putting forward the plea that it is necessary now to constitute a NJC,
firstly, because the National Constitution Review Commission has in its
report proposed the Constitution of such an NJC, and secondly, because
in view of some alleged cases of corruption recently among the members
of the judiciary, an NJC is needed to deal effectively with matters concerning
the cases of misconduct and deviant behaviour among the Judges.
To say the least, this move of the Union Government, though sought to
be made look innocuous by the Union Law Minister, is fraught with serious
consequences for the country. How the State's two organs-the legislature
and the executive-have already been wrecked by criminalisation and corruption
is too well-known. And how it has wrecked the essence of democracy is
too well known. The Judiciary-the State's third organ-has, however, somehow
survived, to a great extent, the all-pervasive onslaughts coming from
criminalisation, and despite its few shortcomings and failures, the judiciary
still commands the democratic trust and faith of the people for its independence,
objectivity and credibility in dispensation of justice.
The proposed NJC, however, will tear apart whatever integrity and independence
India's superior Judiciary still possesses, providing the last surviving
bulwark against attacks by vested political forces on the basic features
of the Constitution. The great paradox behind the move to constitute the
NJC is that the executive, whose image is more than sullied for being
deep in the mire of 'corruption', will play a vital role in the choice
of Supreme Court and High Court Judges and in curbing 'corruption' in
the higher judiciary! What is, again, unbelievably shocking is that the
Bill has by amending Articles 124 and 217, done away altogether with the
initiation, consultation and recommendation of the Chief Justice of India
and the Chief Justices of High Courts.
The Constitution Amendment Bill provides that the proposed NJC will have
(i) The Chief Justice of India, (ii) two Senior Judges of the Supreme
Court, (iii) a nominee of the President of India in consultation with
the Prime Minister, and (iv) the Union Law Minister as members, and in
the case of appointment or transfer of Judges of High Court, the Chief
Justice of that High Court & the Chief Minister of that State, or
when a proclamation under Article 356 is in operation, the Governor of
that State will be associated with that Commission.
As for those who will be the members of the proposed NJC, the Union Law
Ministry has drawn support from what the Constitution Review Commission
has recommended. But by placing the subject of disciplining the deviant
judges in the hands of the NJC, the Law Ministry has acted against the
recommendation of the Constitution Review Commission, because the Commission
has only suggested an in-house mechanism to deal with cases of misconduct,
failing which the Commission has recommended retention of the existing
impeachment provision as the last resort for dealing with the erring Judges.
Then, the Commission recommended that the President's nominee as a member
of the NJC will be on the basis of his consultation with the Chief Justice
of India, but the Bill has committed the mischief of providing that the
President's nominee will be in consultation with the Prime Minister. All
this has been done to execute the government's hidden agenda to denude
the Constitution of India of its most cherished basic feature-the independence
of the judiciary.
I have no hesitation in saying that the Constitution Amendment Bill for
formation of an NJC, if allowed to get through, will demolish the Indian
Judiciary, the Constitution, and all that which the Indian democracy has
been able to hold on to as its basic virtues. As Granville Austin in his
revealing book, "Working a Democratic Constitution", published
in 2000 by the Oxford University, has said, the process of weakening the
judiciary and bringing it under the thumb of the executive began with
the "grievous blow" which the then Prime Minister Indira Gandhi
delivered in 1973 to the independence of judiciary and democratic constitutionalism
by superseding three Judges of the Supreme Court and appointing Mr. A.N.
Ray as the Chief Justice of India. "By attempting to make the Court
obedient to her government," says Austin in his book, "she was
unbalancing the power equation among the three branches of government
and distorting the seamless web.... it was an act of extreme centralisation
of power". However, as the time passed, the judiciary survived the
onslaughts till it again ran into the grey area as a result of the choice
of Judges being made in the corridors of political power in the wake of
the Apex Court decision in the S.P. Gupta case.
The rot which was so setting in, leading to questionable appointments,
was taken care by none other than the Apex Court in 1993 by ruling in
favour of the primacy of the Chief Justice of India in respect of appointment
of Judges, which later on was expanded by the apex court itself, leading
to the emergence of a collegium. However, it seems that the exercise begun
by Mrs. Indira Gandhi to somehow demolish the judiciary is set to be fully
accomplished by the present government.
Significantly, the government suddenly hastened to bring the issue of
NJC at the top of its agenda immediately after the apex court recently
nullified the Union government's 'electoral reforms' legislation passed
by Parliament to undo the court's earlier ruling on the voter's right
to know the antecedents of the candidates who contest election. The intent
is to clip the wings of the Indian Judiciary of its independence through
the device of the proposed NJC.
It is appalling to note the paradox and contradiction in the approach
of the Constitution Review Commission on the issue of the independence
of the Indian judiciary. In its consultation paper on the superior judiciary
which it circulated for 'generating a public debate and eliciting public
response' on the issue, the Commission had amply emphasised the independence
of the judiciary as the cornerstone and a basic feature of the Constitution
and said in that consultation paper: "When we talk of a National
Judicial Commission, what is fundamentally important is its composition.
Its composition should not be such as to affect directly or indirectly
the independence of the judiciary and the power of judicial review both
of which have been held to be the basic features of the Constitution".
However, in its report and recommendations, the Commission shockingly
observed, "However, it would be worthwhile to have a participatory
mode with the participation of both the executive and judiciary in making
such recommendations. The Commission proposes the composition of the collegium
which gives due importance to and provides for the effective participation
of both the executive and the judicial wings of the State on an integrated
scheme for the machinery for appointment of judges". And then it
recommended that Union Minister for Law and Justice shall also be a member
of NJC. It is extremely unfortunate.
Why should the move to constitute the NJC be opposed? The reasons,
in my view, are:
Firstly,
the arrangement which now obtains for appointment of Judges is an ideal
one and, by all accounts, amounts to a lesser evil compared to what the
Constitution Amendment Bill envisages. As Justice K.T. Thomas has pointed
out in his article on "Judicial Appointments" in 'The Hindu',
dated April 21, 02, "The foremost among the advantage of the present
system is that the recommendation is made through a collective exercise
of persons who have undoubtedly the capacity and competence to decide
on the merits of those to recommended as Judges... In fact, some of the
Judges of the US and Canada, when they visited India, praised our present
practice, of selecting Judges." About the inclusion of the politicians
in the NJC, Justice Thomas observed. "Once this is done, the inevitable
consequence would be the smudging of the already battered image of our
judicial institution".
Secondly,
the Chief Justice of a High Court who is required to be consulted
under the existing provisions is best suited to judge the merits of the
members of the Bar who appear before him or his brother Judges to initiate
names in the process of appointment of Judges. By excluding the Chief
Justice of High Courts, there is no mechanism to initiate or recommend
by observing the performance and ascertaining the reputation and integrity
of the persons who might be suitable for appointments.
Thirdly,
the move is based on the recommendation of the Constitution Review
Commission. However, its recommendation has remained by and large unknown
to most of the people, including the lawyers. Instead of holding an all-party
meeting and putting the issue for a national debate, the NDA government
has pulled out abruptly the recommendation of the Constitution Review
Commission as a justifiable basis for a swift passage of the proposed
Constitution Bill. This amounts to taking the nation for a ride.
Fourthly,
the Union government is also taking the nation for a ride by its deceptive
projection of its intention to gather support for the Constitution of
an NJC inasmuch as it has offered the pretext that it has now become necessary
to constitute the NJC, with the participation of the executive, so that
the "growing malady" of corruption in the higher judiciary is
taken care of. Let it be not forgotten that the allegations of delinquencies
attributed in last five years concerned those Judges who were appointed
from the Bar during the period when the task of appointing Judges was
exercised by the executive under the S.P. Gupta case ruling, or the allegations
concerned those who were elevated from the subordinate judiciary under
the 40 per cent quota.
Fifthly,
the argument of the Union government that since the NJC will have
on it the Chief Justice of India and two senior Judges of the Supreme
Court, there should be no fear of political influence getting underway,
is highly misleading. It is not the comparative numerical strength representing
the Judiciary, which would determine the extent of the influence and control,
but the potentiality of the two members from the executive, which will
totally pollute the independent decision-making process; the two executive
members will, in fact, prevail on the Commission.
Sixthly,
investing the NJC with the Law Minister and the Prime Minister's nominee
on it with the power to 'discipline' the Judges would deliver a fatal
blow to the concept of separation of the judiciary from the executive,
and will eventually sound the death-knell for the Indian Judiciary.
It is extremely shocking that the Bar, in particular, and the people of
this country, in general, are still ignorant of the implications of the
Bill, and the Law Minister, as emphasised in the earlier part of the letter,
is taking the nation for a ride. The Law Minister has resorted to a clever
strategy to get, at a quick pace, the parliamentary clearance for the
Constitution of NJC before the gravity of the issue is even realised,
much less debated upon, by the nation.
This letter is a humble effort to initiate a national debate about the
serious implications of the Bill. I am writing this to eminent jurists,
senior advocates, retired Judges of the Supreme Court, and retired Chief
Justices of High Courts, who, I think, will appreciate my point of view,
with a suggestion that let us from a National Forum for the Independence
of Judiciary. I am of the view that democracy in India is surviving firstly,
because of the Constitution of India and secondly, because the Supreme
Court has interpreted this Constitution as having some basic features,
the most important being the independence of the Judiciary. If this independence
of the Judiciary goes, this country may not survive as a democratic nation.
The necessity to form a national forum has arisen not only to oppose the
Amendment Bill but to supplement that part of the Bar which is required
to help maintain the independence of the Judiciary, particularly also
in the context of the crisis which the Judiciary is facing in the wake
of charges of corruption, and the failure in this respect of the regular
forums of the Bar, like the Bar Associations and the Bar Councils, suffering
from an attitude of indifference and apathy,
It is proposed that there should be a meeting in the second week of July
of those who might agree to join the proposed National Forum. I look forward
to your response on the following address. Thanking you, Yours truly.
-- Ravi Kiran Jain, Senior Advocate, High Court, 1/1, Akashpuri Colony,
Hastings Road, Allahabad-211001, 20 May 2003