The Judicial Appointments Bill and its Impact

The Indian Parliament recently passed the Judicial Appointments Bill. While most people agree that this could strengthen the country’s judiciary, some object to it. This article explores the relevant issues.

The context

The Republic of India has three wings: Legislature, Judiciary and Executive. For ensuring justice to citizens, it is important for the Judiciary to be independent. Accordingly, it becomes imperative that the Judges of the Supreme Court and the High Courts be appointed in a transparent and appropriate manner. The Judicial Appointments Bill aims to redefine the manner in which appointments (and transfers) of Supreme Court and High Courts judges is made.¹

The existing law – Judges appoint other judges

Presently, as per the Constitution of India², every judge of the Supreme Court is appointed by the President after consultation with other judges of the Supreme Court and High Courts. In 1993, the Supreme Court of India passed a judgment³ and said that the power of appointment of Judges should be with the Judiciary only, and not with the Executive.

Therefore, it laid down a procedure⁴ according to which the President shall follow the recommendations laid down by the Chief Justice of India and his four senior most colleagues. This group of five judges was commonly called ‘collegium’ of judges.

Proposed Change: ‘Commission’ instead of ‘Collegium’

The new bill⁵ passed by the Parliament has suggested a National Judicial Appointments Commission. All the appointments of the Judges shall be as recommended by the Commission. Therefore, the bill has proposed ‘commission’ instead of ‘collegium’.

The commission shall be headed by the Chief Justice of India and shall consist of two senior most Judges, along with the Law Minister and two eminent personalities. At least one of these two eminent personalities should belong to SC/ST/OBC or should be a woman. 

The Conflict: Executive interference in Judiciary

The critics of this bill believe that the new provisions give the power to the Government to tweak the appointments of Judges since the government and political forces are involved. The whole conflict stems from the fact that there is an intervention of Executive function in the appointment of Judiciary. Earlier, we had a system of ‘judges appointing judges’. Now, this is not entirely true.

Particularly sensitive issues in the bill⁵ are:

1) The Law Minister (who is a part of the Government – the ‘Executive’) is a part of the Commission who appoints the Judges.

2) There are two eminent personalities who are a part of the Commission. The appointment of these ‘eminent’ personalities is in the hands of a committee consisting the Prime Minister, the Leader of Opposition and the Chief Justice of India.

3) If two members are of the Commission object to the appointment, then the name cannot be recommended. This means that any two people (amongst six) together hold a veto power.

Clearly, the Government has a larger than ever role to play in the appointments of Judges.

The Debate on Judicial Appointments – What is appropriate?

(Retd. Justice Katju)

If all the power of appointments is vested with the Judiciary, there is a risk of collapse in case any of the members of the Collegium are corrupt. Retired Judge of Supreme Court, Justice Katju alleges⁶ that there are serious corruptions in the appointment of Judges as per the present system. He has also particularly pointed out a Judge of the Madras High Court as being corrupt. He believes that the new system of setting up a Commission for appointments is required.

On the other hand, the Chief Justice of India strictly rubbished these allegations. Many experts⁷ believe that this system would affect the independence of the Judiciary. Supreme Court lawyer Manohar Lal Sharma has filed a petition⁸ with the Supreme Court challenging the proposed bill.

Conclusion

In the matter of judicial appointments, it is clearly inappropriate to take any extreme side. As far as this bill is concerned, it is passed by the Parliament but has to be accepted by at least half of the State Legislatures and assented by the Parliament before it can become a law.

A similar debate for an organised judicial appointments is presently going on in Canada. Irwin Cotler proposes⁹ that the Conservative government adopt a more representative and inclusive approach. This could include a more broadly representative and inclusive judicial advisory selection panel, where no political party has a majority.

Whether or not the system proves beneficial for the country, only time will tell.

NOTES

1. Refer page 5 of The Bill as tabled in Lok Sabha on 11^th Aug, 2014 which explains the objective and reasons.

2. Article 124 and Article 217 of the Constitution talk about the existing law.

3. Till 1981, the judges did not have any real power since ‘consultation’ was not ‘concurrence’. However, in 1993, Supreme Court passed a historic nine-member bench judgement which completely changed the procedure for appointment.

4. The existing procedure along with its rationale are explained here.

5. Click here to read the Constitutional Amendment Bill that seeks to establish the Commission.

6. Justice Katju’s comments on the bill and corruption in the Judiciary.

7. Fali Nariman objects to the Judicial Appointments Bill

8. Manohar Lal Sharma files a petition challenging the bill and its provisions.

9. In this article, similar conflicts relating to judicial appointments in Canada are discussed.