By Abu Zafar, IndiaTomorrow.net,
Finally both houses of the Indian Parliament passed the National Judicial Appointments Commission Bill ending the 22-year Collegium system to appoint judges in high courts and Supreme Court of the world’s largest democracy. Now a commission comprising Chief Justice of India, two senior-most judges of Supreme Court, Law Minister and two eminent persons will appoint judges of the apex court and high courts. The two eminent persons of the Judicial Appointments Commission (JAC) will be chosen by a committee comprising Prime Minister, Chief Justice and leader of the largest opposition party in Lok Sabha.
Though controversies and criticism were not new to the Collegium system but the way the bill has been passed in Lok Sabha and Rajya Sabha with a support from almost all major political parties is very unfortunate.
The logic given against Collegium was that it lacked transparency and operated in a very opaque and secretive manner. It is true that Collegium was not an ideal system to appoint judges in higher courts and there were several accusations and cases of malpractices in judicial system including Collegium. Some of such cases also captured national and international headlines like the recent accusations of former Supreme Court judge Justice Markandey Katju about a Chief Justice of India favouring a judge for Supreme Court in 2005 or the case of the current chairman of Law Commission of India Justice A P Shah who retired as Chief Justice of Delhi High Court in 2010.
This all argument is not to defend Collegium system but in my opinion the new system supported by major political parties in both houses of the parliament is more harmful than the previous one. Senior Journalist and columnist Siddharth Vardarajan, in his piece that appeared on the website of NDTV news channel, also said: “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.”
Why is Judicial Commission dangerous?
It is first time in the history of independent India that executive is set to usurp the independence of judiciary.
The main question is independence of judiciary. Ideally in a democratic country like India executive and judiciary should be separated and they have been so but due to the new commission there are lots of scopes of intervention by executive in the business of judiciary.
It is a fact that government is the largest litigant in higher courts. If top brass of the government like Prime Minister and Law Minister will have say in appointment of a judge then there is a serious question on independence of judiciary.
Vardarajan also says: “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 JAC will have two eminent persons among its six members. The process to select these two persons is not clarified. Again involving Prime Minister and leader of largest opposition party in the Lok Sabha will also make it political which is dangerous for judiciary. Even the term ‘eminent’ is very loose and flexible and vulnerable to misuse.
Judiciary is a very sensitive institution of Indian democracy and if it failed to function independently then the democracy itself will be in danger. Major political parties supported the legislation in parliament because they wanted their say in the judiciary and there are fears that through this they can influence some decisions or whole decision making process of the judiciary.
One should understand that this is not a marginal change but a major change with a larger and longer impact. Judges deal with several high sensitive issues including life and death. Once politics is involved in the process then chances to question every verdict and motive behind it would increase rampantly. There are also chances of more discrimination on the basis of caste, class and religion if political class will be involved in the system.
Still it is not clear as to why government and political parties were in a hurry to pass this legislation and unlike several previous bills they didn’t put it in public domain seeking comments and suggestions from vast civil society of the country.
Eminent jurist Fali S Nariman is so upset with new legislation that he has threatened to challenge it Supreme Court.
“…The independence of the judiciary is now the cornerstone of the Constitution. And anything that is done which damages it is anathema and the people who decide are the judges of the Supreme Court,” he told Karan Thapar on Headlines Today news channel. “Many lawyers including myself will move in that direction, he said, suggesting that he may challenge the bills which were passed Parliament.
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The views expressed are personal. Follow the writer on Twitter: @Journo_Z
