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Siddharth Varadarajan is a Senior Fellow at the Centre for Public Affairs and Critical Theory, Shiv Nadar University, New Delhi)
The unseemly haste with which the Modi government -- armed with the backing of most parties in Parliament -- is legislating a new system of appointing Supreme Court and High Court judges raises questions about the impact this will have on the independence of the higher judiciary.
While there is a broad consensus on the need to reform the manner in which judicial appointments are made and render the process more transparent than it has been under the Collegium system, the proposed National Judicial Appointment Commission suffers from a fatal flaw: it gives the government a direct role in making judicial appointments and even the ability to block individual judges under certain circumstances.
The Constitution prescribes a fine balance between the executive and the judiciary, and judicial independence is the key to its maintenance. This in turn requires senior judges to be independent-minded women and men. Thanks to the lack of transparency in the way the Collegium functions, our higher judiciary has unfortunately had individual members who were compromised in one way or the other. Many judges are fiercely independent and cannot be influenced by
sarkari blandishment; but some are not, as recent revelations by Justice (Retd) Markandeya Katju make clear.
The Judicial Appointments Commission (JAC), as currently envisaged, is dangerous because it breaches the separation of the executive and the judiciary by giving the Law Minister a formal role and compounds this sin by opening a door for the government to filter out individual nominees whose reputation for independence might make it uneasy.
The Commission will consist of six members - the Chief Justice of India and the next two senior-most Supreme Court judges, the Union Law Minister, and two eminent persons chosen by a committee consisting of the Prime Minister, the CJI and the leader of the largest party in the Lok Sabha. Ideally, these three individuals should unanimously select the two eminent persons, although the proposed law is silent on this crucial aspect.
In order to forward a name to the President of India for appointment as a senior judge, the JAC needs to cast five positive votes. If at least two members oppose a particular nominee, that name has to be cast aside. This means that at the initial stage of consideration itself, the Law Minister, as the representative of the Central Government, has the power to block a nominee if he is able to convince at least one other JAC member to go along with him.
The government's draft -- amended at the 11th hour on Wednesday at the urging of the opposition -- armed the Law Minister with a second - and easier -- chance to exercise a veto once that nominee's name is sent up to the President.
Under the present Collegium system, the President, acting on the advice of the government, has the right to ask the CJI to reconsider a judicial nomination. But if the Collegium decides to stick to its guns - traditionally it must do so unanimously - then the government and President would have no option but to appoint that person as a judge. The requirement of unanimity is a useful safeguard because defying the government is serious business and Collegium members need to demonstrate a united front on the matter.
Under the original JAC system, as tabled in the Lok Sabha earlier this week, once the government sends the file back for reconsideration, the Commission can overrule the President only if it does so unanimously. But there was a crucial difference: as a member of the JAC, the Law Minister also got given a veto! He thus could block the appointment by withholding his individual vote and preventing the Commission from acting unanimously.
In the wrong hands, this lind of veto power would wreak havoc with the independence of the judiciary as the Law Minister would have the direct ability to block all nominees that are not to the government's liking.
Responding to opposition MPs' protests over this killer provision, Union Law Minister Ravi Shankar Prasad agreed finally to drop the requirement of unanimity. But that is not enough. The very presence of the Law Minister as ex-officio member of the JAC would tend to vitiate the selection process and the principle of the separation of judiciary and executive. The fact that the draft JAC bill moved by the erstwhile Manmohan Singh government also envisaged the Law Minister as a member goes to show the Congress and BJP both have a common interest in inserting the executive into the judicial selection process.
The Collegium system has run its course and desperately needs to be replaced by a process that is more transparent. What the JAC does is to smuggle in a role for the government in the name of introducing transparency. If the JAC were to consist solely of judges and eminent persons nominated unanimously by a committee consisting of the CJI, the PM and the leader of the largest opposition party in the Lok Sabha, it would not be any less transparent but it would be considerably more independent.
While the BJP and Congress are unlikely to agree to the removal of the Law Minister as ex-officio member of the JAC, there is one further amendment that must be introduced: the Law Minister must not have the power to block a nominee in tandem with another member. Thus, the law should say that the Commission "shall not recommend a person for appointment ... if any two members of the Commission other than the Law Minister do not agree for such recommendation."
There must also be absolute clarity about the manner in which the two eminent persons are to be selected for the JAC and the unanimity principle must be enshrined in statute.
In its 2010 ruling in the case of the former Central Vigilance Commissioner, P J Thomas, the Supreme Court refrained from prescribing unanimity among the members of the High Powered Committee which selects the CVC since the 2003 Act itself did not explicitly require this. Its suggestion that differences of opinion, if recorded, "will bring about fairness in action" and that the legality of the selection would anyway be subject to judicial review may not help in this case since the CJI himself would be party to any dispute which arises.
There are, of course, many other issues that have come up in the course of the past week - eg. whether the JAC should deal with all appointments to the higher judiciary or just the Supreme Court - and it is best if the government gives enough time for the law and associated constitutional amendment to be debated more widely. The changes being contemplated will affect the Indian judiciary - and the Indian polity and society -- for years to come. It's best to get them right.
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