Judicial Appointments Commission: Who will Guard the Guardians?

by Vasujith Ram

The Rajya Sabha has recently passed the 120^th Constitution Amendment Bill and the Judicial Appointments Commission Bill. The bills are up for consideration in the Lok Sabha and may be passed soon.  They seek to replace the present collegium system for appointment of Judges to the higher Judiciary with a Judicial Appointments Commission.

A major area of concern is Section 3 of the Constitution Amendment Bill. The section inserts Article 124A into the Constitution. Clause (2) of the proposed Article 124A provides the Parliament the power to legislate on the composition of the Commission, appointment, tenure, qualifications, conditions of service, functions, procedure of the Commission. It also provides that law may be made by the Parliament regarding manner of selection of the Chief Justice and Judges of the Supreme Court as well as the High Court. A residuary clause “such other matters as may be considered necessary” has been added. This in essence gives vast and unfettered power to the Parliament on Judicial appointments. Note that since this is ordinary law, the Parliament can amend the provisions of the law with a simple majority.

Recently the Supreme Court held in CEC v Jan Chaukidar that a person in police custody cannot contest elections. In Lily Thomas v Union of India the Court held that the three month window for a convicted MLA/MLC/MP to appeal without disqualification is unconstitutional. A review petition was filed by the Government against both the judgments. The Supreme Court did not admit the Lily Thomas review petition but admitted Jan Chaukidar. However the Parliament passed The Representation of the People (Amendment and Validation) Bill, 2013 and The Representation of the People (Second Amendment and Validation) Bill, 2013, nullifying the effects of the two judgments, while stating in the Statement of Objects and Reasons that “the Government is of the view that without waiting for the outcome of the said review petition, there is a need for suitably addressing the situation arising out of the said judgment”. The political class is often united when it comes to their self interest – this was also seen in the issue regarding the applicability of the RTI Act to the political parties. It was only the immense civil society pressure that finally led the amendment bill to be referred to a standing committee.

Supreme Court in L. Chandra Kumar held that “[w]hile the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior courts would be insulated from any executive or legislative attempts to interfere with the making of their decisions.” Dieter Grimm in his article notes, “Judicial independence must be guaranteed, not only against any attempt to directly influence the outcome  of litigation, but also against more subtle ways of putting pressure on the judiciary. This is why Constitutions usually guarantee the impossibility of removal of judges and often a sufficient salary, to mention only a few devices” (emphasis supplied). Thus the proposed Constitutional provision, which leaves the power to fix the salary, tenure, composition of members of the Commission, etc. to the ordinary law of the Parliament, undermines the independence of the Judicial Appointments Commission and the Parliament may any time amend the law by simple majority as per its convenience. It may lead to undesirable outcomes – the membership and tenure of the Judiciary may be reduced, role of the Judiciary may be subdued and the executive and political class may take control of the Commission. In addition to this, section 10 of the Judicial Appointments Commission Bill states that “No act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy in, or defect in the constitution of, the Commission.” These provisions regarding composition, tenure, functions, etc. need to be entrenched in the Constitution in order to ensure the independence of the Commission and secure it from excessive political interference. It is said that our Constitution is lengthy because we had not yet developed a culture of Constitutional morality – it is true of today’s political class as well, and thus there is a need for inclusion and entrenchment of these provisions.

The Constitutional Amendment Bill has not made any changes to Art. 124(3)(c) which states that, “A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and – (c) is, in the opinion of the President, a distinguished jurist”. Although no appointment has been made using this provision, the possibility of future appointment may cause confusion regarding the procedure. Does the President recommend names of distinguished jurists to the Judicial Appointments Commission, which recommends the names back to him (as per amended Article 124(2), which will read, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the Judicial Appointments Commission as referred to in article 124A”)?

The Judicial Appointments Commission Bill is also riddled with several problems. The Commission is composed of the Chief Justice of India, two senior most Supreme Court judges, the Law Minister, two eminent persons, and the Justice Secretary (as the convener). How the senior-most SC judges can sit in judgment over their own possible appointment as the Chief Justice of India, is beyond comprehension. This also means the sitting CJI will be part of the process to recommend the next CJI. It is also to be noted that the seniority rule may well be violated by the JAC. We may see a repeat of the past instances of supersession, such as when Justice AN Ray was appointed CJI superseding three judges, or when Justice MH Beg was appointed CJI superseding Justice HR Khanna, done in order to have ‘committed’ judges as the CJI. However there is a possibility of challenge in the Courts as it is now generally regarded as a Constitutional Convention.

The two eminent persons are to be selected by a collegium comprising of the Prime Minster, Leader of Opposition in the Lok Sabha and the Chief Justice. This obviously tilts the balance in favour of the political class. An interesting parallel can be drawn with the appointment of the erstwhile CVC PJ Thomas. The Central Vigilance Commission Act, 2003 lays down that the Central Vigilance Commissioner shall be appointed by the President on the recommendation of a Committee comprising of the Prime Minister, Home Minister and the Leader of Opposition. The Leader of Opposition Sushma Swaraj had submitted a note of dissent regarding the appointment of PJ Thomas due to a pending CBI case and questions of integrity surrounding him. However the other members of the Committee went ahead with his appointment, which was subsequently struck down by the Supreme Court. These dangers can always arise and the word of the political class will prevail over the Chief Justice in such a set up.

There is also no representation from the bar. Though there is a provision for appointment of advocates to the Supreme Court, only four advocates have so far been elevated. While the very nature of the collegiums system made the appointment of a member of the bar to the Supreme Court nearly impossible, the Judicial Appointments Commission was expected to bring some relief. Jurists and members of the bar are non-political actors and may or may not favour the stand of the judiciary, bringing in an element of neutrality. A glorious opportunity to utilize the wisdom of the bar will be lost. It is hoped that the ‘eminent persons’ who will be appointed are jurists or senior members of the bar.

Image Courtesy: here, here and here.

(Vasujith Ram is a second year student of NUJS, Kolkata and an Associate Editor at JILS)