Government and opposition in Rajya Sabha on Thursday presented a joint front in cornering judiciary on all fronts – ranging from corruption, favouritism and nepotism to compromises due to lust of post-retirement jobs benefits – while discussing a bill which seeks to scrap the collegium system of appointing judges.
The bill, giving executive a crucial role in judges’ appointment, was, however, finally passed without BJP members’ presence as they walked out protesting the government’s refusal to send the proposed legislation to a parliamentary standing committee for wider consultations.
As the Upper House took up the bill to amend the Constitution to set up a Judicial Appointments Commission (JAC) replacing the collegium system, law minister Kapil Sibal, leader of opposition Arun Jaitley and several other members were of the view that the present system of appointing judges to Supreme Courtand high courts lacked transparency and accountability.
BJP members said though their party was fully in support of the bill, it wanted a wider consultations before passing of the bill. Jaitley said, “We don’t like the present system. So, we are agreed to change it. We are making a monumental change. Monumental changes are never brought with a knee-jerk reaction”.
The bill, which was passed without BJP members participating in voting, seeks to set up a JAC to recommend appointment and transfer of Supreme Court and high court judges. It states that the JAC will make the participants in the selection accountable and introduce “transparency” in the selection process.
With the creation of the proposed body, the executive seeks to have a say in appointment of members to the higher judiciary. The bill seeks to set up a panel headed by the Chief Justice of India (CJI) to appoint and transfer senior judges. The other members of the proposed commission would be two senior-most judges of the Supreme Court, the law minister, two eminent persons as members and secretary (justice) in the law ministry as Convener.
Moving the bill, Sibal earlier said the Supreme Court in 1993 had sought to change the procedure of appointment of judges in higher judiciary by bringing in a collegium system. The judiciary has taken over executive power by rewriting Article 124 (of the Constitution). That balance must be restored. Executive must have a say in appointment.”
Sibal said, “It has disturbed the delicate balance of separation of powers. There is very clear division of powers among the executive, legislature and judiciary in our Constitution. Judiciary cannot take over the function of the executive”.
Sibal also chose the occasion to flag his concerns over “nepotism” in the judiciary. “We are really worried over the manner in which relatives of judges are practising in high courts. It is very disturbing. It is a matter of sadness that somebody’s maternal uncle, uncle and others practice in court. How long this nepotism will continue,” he asked.
Jaitley echoed Sibal’s views as he pressed for re-establishment of the “separation of powers”. He said when other establishments of the democracy do not infringe upon functioning of the judiciary, then why would it ask the government to do this or do that and direct even on the economic policy of the government.
“Courts cannot review a policy and say that my policy is better that your policy. It cannot say how to be tough on the Naxalites,” he said.
Citing the ban on iron ore exports, Jaitley sought to link judicial orders partially to the present state of Current Account Deficit and depreciation of rupee as a result of that.
Attacking judiciary, he said no government, irrespective of its complexions, has ever said that since court has three crore cases pending, somebody else would do it for courts. Stating that the present system of appointing judges lacks transparency, Jaitley said the three-member collegium often left out the best of the lot for a promotion and go ahead with their choices.
“A collegium is as good as the members of the collegium,” he said as he observed, “Judges appoint themselves and judges are accountable to judges.”
Stating that in the existing collegium mechanism the members of the panel of judges go by their own preferences, he said when the collegium meets for appointment of judges, they “have to accommodate the preferences of each other, and those who don’t come in their list of preferences lose out”.
Jaitley also spoke against the trend of higher judiciary members seeking post-retirement jobs. He said, “I think this whole temptation of continuing to occupy a Lutyens Bungalow (government accommodation in heart of the Capital) is a very serious temptation….The desire of a post-retirement job influences pre-retirement judgments. It is a threat to the independence of the judiciary. Once it influences pre-retirement judgments, it adversely impacts the functioning of our judiciary itself”.
The leader of opposition proposed that a judicial commission should not only have powers for appointment of judges but also ensure their accountability. He said in cases of judicial misconduct, falling short of acts that call for impeachment, the judges were accountable only to judges and “this needs to be changed”.
Sibal, while moving the bill, said the proposal to set up JAC was also the part of BJP’s national agenda of governance in 1998. “I compliment the leader of opposition who then as the minister introduced the bill to set up the Judicial Commission in 2003. All we have done is that we have increased the number of eminent members from one to two who will be appointed in the National Judicial Commission which will appoint the Judges. We are grateful to the leader of opposition that we are only adopting what he had suggested,” he said.
Sibal said the Law Commission had said in 2008 that the Supreme Court interpretation of Article 124 (2) is contrary to the letter and spirit of the very article. He recalled that Justice M N Venkatachaliah and Justice J S Verma, who had favoured the collegium system, had later said they regretted their decision and that the system was not working.
The minister also recalled that as a counsel, he had in past supported the idea of the judiciary appointing judges. “I also regret…Wise men are always proved right. When we were young, we wanted to change the system and sorry we disregarded your wisdom,” Sibal said as nominated member and former Attorney General of India K Parasaran reminded him that Sibal was opposed to any outside role in judicial appointments.
“I am not saying that you should go back to 1993. There should be a judicial commission so that a collaborative exercise is there for their appointments. We do not want to impose our decisions in judicial appointments.
“That is why we have made provisions for inclusion of two eminent persons in the judicial commission whose names will be decided by the Prime Minister, leader of opposition in the Lok Sabha and Chief Justice of India jointly,” the minister said.