Tuesday, August 12, 2014

Bill for National Judicial Appointment Commission

Cabinet approves Bill for National Judicial Appointment Commission

On August 10, 2014 by Apoorva Mandhani

The Union Cabinet has paved way for providing Constitutional status to the National Judicial Appointment Commission which proposes to provide equal say and veto power to the Judiciary as well as the Executive in matters pertaining to appointment of Judges. A Constitutional Amendment Bill which provides for such a change in the system has been cleared by the Cabinet.

Earlier, the Government had accepted the report by the Parliament Standing Committee on Law and Justice, which had laid down the structure and functions of the JAC, replacing the present system of recommendation by the collegium. The parliamentary panel had said: "The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding the Executive entirely in the collaborative and consultative exercise for appointment of judges to a Bench of the higher judiciary. Because of its inherent deficiencies in the collegium, as many as 275 posts of judges in various High Courts are lying vacant, which has a direct bearing on the justice delivery system and thereby affecting the judiciary."

The bill also states that before recommending a name for appointment as a judge of the HC the commission must take the view of the chief minister and the governor of the concerned state in writing.

The Constitution (120th Amendment) Bill, 2013, provides for setting up of a Judicial Appointments Commission by inserting Article 124 (A) in the Constitution and amending Articles 124(2), 217(1) and 222(1). The structure and functions of the proposed commission are provided in the JAC Bill. The proposal approved by the Cabinet provides for the new Article 124A of the Constitution of India, which will define the composition of the JAC. Article 124B will identify its functions.

NJAC will be the authority for appointment of Chief Justice and Judges of the Supreme Court and High Courts. It will also have the authority to initiate transfers of High Court Judges. The bill states that before recommending a name for appointment as a judge of the HC the commission must take the view of the chief minister and the governor of the concerned state in writing.

The NJAC will be composed of six members, comprising of the Chief Justice of India, Law and Justice Minister, two senior most Judges of the apex Curt and two eminent persons. The choice of these "eminent persons" will be left to the Prime Minister, Chief Justice of India and the Leader of Opposition Party or the leader of the largest party in Opposition. Moreover, these two eminent persons would belong to the Schedule Caste, Schedule Tribe, women or minority community, preferably by rotation and will have tenure of three years.

The Bill provides that no candidate, the appointment of whom is opposed by two or more members of the Commission, can go through. Hence, neither the Judiciary, nor the Executive can assert autocratic will over any appointment.

The bill will facilitate wider consultation, from Bar bodies, senior advocates and eminent persons, by the collegium of the HC before recommending a name for consideration by NJAC for appointments.

The process of selection of a Judge would commence six months before a vacancy arises. The Justice Department Secretary will be the convenor of NJAC.

However, the bill does not propose to change the memorandum of procedure provided for appointment of the CJI. The senior-most judge of the SC will be appointed, after the incumbent CJI demits office.

The magnitude of responsibility conferred on the JAC, as well the involvement of Constitutional and State functionaries, resulted in the recommendation of State-level Commissions.

Earlier, Law Minister Ravi Shankar Prasad had reportedly written to 26 parties, inviting their views, in order to obtain consensus. While the Modi Government has a comfortable majority in the Lok Sabha, it is in a minority in the Rajya Sabha and needs the support of Opposition parties to push the legislation through.

According to a report in The Hindu, even though a final Cabinet nod is waited for the bill, "the government, however, is said to be keen that a Bill to constitute the NJAC be passed in the current session of Parliament itself."

The Bill is being viewed by many as a key judicial reform, aimed at providing the much required transparency in the entire process of judicial appointments. The Constitutional amendment bill will have to be passed with a two-third majority in the Parliament, according to the procedure laid down under Article 368 of the Constitution.

However as Upendra Baxi notes in this opinion piece in the Indian Express, questions how the Commission will function noting that,

"If the advice of the CJI and his companion justices is to have an 'edge' or 'dominance', how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?"

Even the Law Commission chief in India had not approved of the Judicial Standards and Accountability Bill, 2012 as it could compromise the independence of the judiciary.

At a meeting convened by the Centre on July 28 however, most top jurists had reportedly shown their inclination and support for the scrapping of the collegium system.

Currently, the appointment of judges to the Supreme Court and the High Court is provided for, under Article 124(2) and Article 217(1) of the Constitution of India, 1950. The President of India is required to "consult" with the Chief Justice of India and in case of High Court appointments, to consult the Governor and the Chief Justice of the respective High Court. The Supreme Court in the case of Supreme Court Advocates-on-Record Association v. Union of India1 in dealing with Article 124(2) and 217(1) of the Constitution interpreted the word "consultation" to mean "concurrence". The Advisory Opinion of the Supreme Court in Special Reference No. 1 of 1998 prescribed a distinct process of appointment whereby the judiciary through its "collegiums" consisting of the Chief Justice and two or four senior judges, as the case may be, would recommend names to the President, who then is bound by the decision of the Collegium.

The fate of the Bill rests in the hands of the Parliament now.

Also read the related stories

A Fatal Flaw in the Bill on Judges

Opinion | Siddharth Varadarajan | Updated: August 14, 2014 15:55 IST

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.

Siddharth Varadarajan is a Senior Fellow at the Centre for Public Affairs and Critical Theory, Shiv Nadar University, New Delhi

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Sources: http://goo.gl/aY4VDD

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