Don’t shake the Indian judiciary” is a passionate outcry today in some sections of the Indian society after the passing of two important judiciary reforms-related Bills, the National Judicial Appointment Commission (NJAC) Bill, 2014 Bill and the 121st Constitution Amendment Bill. Some critics say these Bills will be dangerous to the absolute independence of the Indian judiciary. Even Chief justice of India Ml lodha has reportedly pointed out that the people in executive, legislature and judiciary need to function within their assigned spheres without encroaching the domain of other, and all these democratic institutions should have mutual respect for each other and allow them to work unhindered.
But the present Government gives a contrary view, clarifying that by a change of system of appointment of judges to the higher judiciary, it has restored the spirit of Articles 124 and 217 of the Constitution while maintaining the primacy of judicial institution in the matter of appointment.Thus, the debates are on and likely to continue because the suspicion of political interference in the judiciary is a gross sensitive issue. The people never want a committed judiciary as it had allegedly surfaced in the 1970s.
The NJAC Bill, 2014 will replace the Collegium system of judges electing judges. The Constitution Amendment Bill enables creation of the NJAC. And both the Bills have been passed in Parliament by voice votes without any opposition which demonstrates that perhaps the Indian political class is very much eager to grab the opportunity to control the judiciary when the opportunity unfolds.
The outgoing Collegium system was more than two decades old. To put an end to interference of political parties and of the executive, the Collegium system was introduced in 1993 under which an “outsider “ had no role to play in appointment of judges to the Supreme Court and High Courts. The law Minister and the Government had little say in the entire selection process. Even if the executive objected to a candidate, it had scant effect but to accept if the SC reiterated its decision. Hence, the judicial appointment to higher courts of justice was all a judiciary affair only.
But the proposed NJAC system, though apparently wider, has a scope of political and executive interference. As per new law, the commission will comprise six members and the Chief Justice of India will head it. Besides the Chief Justice, the judiciary will be represented by two senior SC judges. Two eminent personalities and the law Minister will be the members of the selection body. Of the eminent personalities, one member must be from among SC/ST/ Minority/ Women. And there will also be a selection panel to select these two eminent personalities. The Chief Justice, the Prime Minister and the leader of Opposition in lok Sabha have to constitute this selection panel. If there is no recognised leader of Opposition leader, the process of selecting eminent personalities will be a disaster and be delayed.
Veteran jurist Ram Jethmalani has observed that the inclusion of the law Minister is a clear sign of political interference in judicial appointments. He says that having the law Minister in the NJAC is a flawed clause since all the law Ministers are usually lawyers who go back and practise in the same court after demitting office.
Given the composition of the NJAC, the executive can have its way in attaining a majority in the selection committee, and it may either cause procedural delay of appointment or it can, citing intelligence report, scuttle the chances of a candidate who may not find favour with the ruling political party.
In fact, the Supreme Court has held its place in public esteem rather better than the legislature and the executive. Despite occasional allegations of financial impropriety, our judges are still regarded as persons of wisdom, learning and high-minded and dutiful in comparison to legislators, ministers and civil servants. As it is observed so far, the higher courts of justice in India are better insulated from public pressure.
There are pressures now to make the judiciary more representative in terms of caste, class and community, but it is difficult to visualise a judiciary whose members belong to equal proportions to every social class and structure. There is no harm when a person from any class or community having little education or no education at all may seek election to Parliament or State legislature, but if the eminence of legal personality is ignored in selection process of appointment of judges to higher courts it will be disastrous for the judiciary and for the nation as well.
In short, there are assigned distinct spheres of operation for the democratic institutions and, therefore, there should not be tension among the different Constitutional wings. And if the tension is carried forward beyond certain point, it may erupt inviting a kind of disorder which may jeopardise smooth functioning of democracy.
Now the question comes whether the Bill amending Articles 124 and 217 relating to appointment of judges to the Supreme Court and High Courts, respectively, is part of the basic structure of the Constitution in which the Kesabananda Bharati judgment has laid some strictures and whether the Bill will not be subject to judicial review.
(The writer is a Puri-based advocate and a columnist)