The Taming of Judicial Shrew - A Pradhan Seva ??

The Modi led government recently passed the Judicial Appointment Commission Act 2014 in the parliment.  The Act seeks to wrestle back the power of appointment of judges of high court and Supreme Court from the Supreme Court’s collegium system.    In the old collegium system a small band of senior judges of SC would decide the appointment of the judges of constitutional courts (HC and SC) on its own accord.

In 1993, the collegium system came into force after the 3 judges case and supreme court’s response on presidential reference on the question of judicial appointment to president KR Narayanan.  The effect was that the appointment of judges was made totally independent of the government of India and remained so for over 20 years.

Over the years various law commission reports highlighted the problem with the collegium system.  Many of them contented that the decision in the 3 judges case and the response to presidential reference was blatantly erroneous.  The reasoning was that the constitution itself provided that appointment should be made by the president in consultation with others.

The problem with the old system was mutifarious.  For one it was shrouded in the darkness of high secrecy and no one could guess who would be appointed.  It was a non-transparent process.  Two, the members of collegium were far removed from the state and the courts where they sought to appoint their selected judges in and had no awareness of ground realities.  Many judges called the appointments as judicial appointment and lambasted the collegium system.  Even great legal luminaries like AP shah of Delhi high Court were not elevated to the bench of supreme court which went on to prove how fickle the system really worked. 

While it is true that the system of Appointment of judges by the Collegium was always controversial and accused of being non-transparent, reeking od nepotism and favouritism.   It was by all means a thoroughly Independent process.  The Political masters of this country had no say in appointment of any judges of the High Court of Supreme Court for the last 20 years.   While the Individual appointments could always be protested, what could not be protested in the last 20 years was the Independent system of Appointment.  While this led to disappointments for many, the courts by and large worked in a totally Independent manner punishing many politicians and high ranking officers where the need arose. 

 

Under the new system devised by Pradhan Sevak, the judicial appointment commission needs a majority of 5 out of 6 members for any Appointment to be made.  The government of India along with its nominees contitute 3 members and the other are 2 senior judges of the high court along with the chief justice of India himself of the board. 

While primafacie it looks as though the board constitutes an Independent process of appointment as the political executive has no majority say in the appointment (3 out of 6), a deeper analysis reveals that it is not the case. 

The political executive has now arrogated itself with powers to stall the elevation of any judge who it does not prefer.  Simply put, while it is true that the government nominees do not have majority in appointment of Judges in the commission, it is still possible to stall the elevation of any judge to high court or supreme court because a consensus of 5 out of 6 members must be reached for any appointments.

Now if the trial court judge does not grant yedurappa a bail, rest assured the judge will retire as a judge of the trial court and be never elevated to High court by the government despite his illustrious career by using the 3 government nominee on Appointment board.  In future if any High Court judge passes strictures against the government of India or political party.  Rest assured, he will never become judge of the Supreme court in his life time.

Judicial Appointment commission poses strongest challenge to Independence of the Judiciary since the days of Indira Gandhi.  It is now hoped that the supreme Court will now suo motto take up this matter and quash the Judicial Appointment Commission Act as being Ultra Vires the constitutional separation of powers between Executive and the Judiciary. 

In simple words, the political lords of this country should have no business to do with the judiciary much less be able to stall the elevation of judges of high integrity and caliber who may not be to their liking and who may have passed strictures against them in the past.

If the collegium system was accused of Nepotism or favouritism the way forward was to make it transparent system.  The solution was not to let the political lords of this country have a say in who should sit on the benches of constitutional courts. 

The last bastion of  Indian democracy now stands on a shaky pillar, whose foundations are being progressively hollowed by those who claim to bring "Ache din".  Should stroke of pen be allowed to destroy judicial independence of worlds largest democracy and obliterate its last bastion?

That is the thought for consideration.