I must apologise to my readers for having devoted last Sunday to some facets of the Delhi elections. With Delhi voting on Saturday, I return to judicial reform for Sunday.
Let me start with the appointment of judges. It is an elementary principle that a litigant cannot be allowed to have a voice in the appointment of a judge from whom he is seeking justice. On a larger scale, it means that the litigants in general must have no effective hand or participation in the appointment of judges. It is a fact that apart from litigation between private persons, the executive, namely, the government and its extensive blundering bureaucracy are the ones against whom the wronged citizen seeks redress from the courts. Logically, should this wronged citizen be expected to have confidence in judges who owe their appointment wholly or partly to the executive? Once upon a time, when our rulers were honest, the system as originally expounded in our Constitution, which gave complete power of appointment to the executive, subject only to consultation with the judiciary, did work satisfactory. Unfortunately, national character has declined, the decline being deeper and faster amongst ranks of our executive.
The system, therefore, had to be altered. The first effort took place in the famous S.P. Gupta vs Union of India — 1981, where unfortunately the Supreme Court upheld the challenged system. They refused to treat "consultation" with judges as "concurrence". However, there were welcome references to the system prevalent in other countries like South Africa, where judges were appointed not by the executive, but by a judicial commission. Certainly, the Law Minister was formally consulted, his comments upon appointees or recommendees of the judiciary given due respect and attention, but they were not binding on the judges.
In the Second Judge's case of 1993, the Supreme Court was persuaded to hold that the word "consultation" meant concurrence. In other words, the judges had the final voice and not the executive. Though this was a great reform, even this new system had serious defects. There was no transparency in the process of appointment. The citizenry in general had no knowledge of who were to be appointed, and hence had no opportunity to voice their comments on the undesirable ones. In the words of the inimitable Mr Justice Krishna Iyer, the system was "incestuous". The judges bargained amongst themselves "you scratch my back, I scratch yours". This incestuous system had to go, and a judicial commission was the solution.
The next question that arose was what kind of a judicial commission should be created for this purpose. Many years ago, I had introduced in Parliament a Private Member's Bill on this topic, that contemplated and advised a National Judicial Commission with five members — the Prime Minister and the Leader of the Opposition, an eminent representative of the bar, a jurist from the academic world, and a person well-versed in the social sciences, who understands the needs of the underprivileged class of our society. The presence of the first two neutralised executive power. The practicing bar is the constituency of the judge, whose confidence he must enjoy. It is only members of the bar who know the black sheep on the bench. The American Bar Association can, by its adverse criticism, make the mighty President of the United States withdraw his nominees for judicial office. A Lord Chancellor of England admitted that if he made an unworthy appointment, he could not possibly look straight in the eyes of the lawyers at the bar dinners.
The Constitution, in Article 124(3) prescribes the qualifications of a person to be appointed as a Supreme Court judge — that he should be a citizen of India, that he has been for at least five years a judge of a high court, or has been for at least ten years an advocate of a high court, or is in the opinion of the President, a distinguished jurist.
To the best of my knowledge, no person has been appointed to the Supreme Court bench, because of his qualification as a distinguished jurist. This either means that the appointing authorities have regarded this qualification as totally redundant, or that the appointing judges believe that every person who has been judge of a high court for five years, or an advocate before the high court for ten years automatically acquires qualifications of a jurist.
I believe that the requirement of a jurist in the commission is absolutely essential. Our country badly needs them, and five years' judgeship in the high court or ten years' practice at the bar is not enough to make one a distinguished jurist.
Lastly, the country's progress and prosperity depend upon the welfare of the workers, the pillars of our economy. Without them, no economic growth is possible, and their need for justice is both acute and obligatory. Some recognised leaders of this sector of our citizenry will add to the social and public acceptance of the National Judicial Commission.
Now let us see what has been accomplished by the new Constitution 121st Amendment Bill 2014, which has since been enacted by Parliament. This Bill, unlike the earlier one, which failed to pass, has by Article 124A established the National Judicial Commission, as well as its constitution and functions. The defects of this new provision, however, are as serious as those of the previous one rejected by Parliament, namely:
(i) The Chief Justice of India and two other senior judges of the Supreme Court are three out of the total six members. This is unexceptionable and right.
(ii) The objection is to the fourth member, the Union Law Minister in charge of law and justice. This member should have been an independent and eminent member of the bar, and certainly not the minister of the government. If any minister, including the Prime Minister, is to become a member, his presence should be neutralised by Leader of the Opposition. The object of this provision, therefore, is to give the executive a significant edge in the selection of judges. This offends the very first principle that the litigant must have no voice at all in the appointment process of the judge before whom he seeks justice.
(iii) Now the remaining two members of this commission are described as two eminent persons to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition. This provision does not ensure the presence of an eminent and independent leader of the bar, nor does it provide for a distinguished jurist or academician. I have expressed earlier that a person eminent in the social sciences should normally mean a person enjoying the confidence of the workers of India. And besides, eminent persons in our present democratic ethos are normally interpreted to be those enjoying political power.
(iv) One out of the two eminent persons is to be nominated from one of the six classes of the citizens of India — Scheduled Castes, Scheduled Tribes, OBCs, minorities or women. Selection of one member from these six large groups will certainly not be easy and can cause dissention and strife in nomination, or even an impasse.
To the best of my knowledge, this Bill was passed in Parliament almost unanimously. The previous government had initiated a very mischievous measure in the Constitution 120th Amendment Bill of 2013, introduced in the Rajya Sabha on 24 August 2013 by my friend Kapil Sibal, then Law Minister. He had somehow, through his personal magic, persuaded the Leader of the Opposition, Arun Jaitley to accept that Bill as good. I was the lone Rajya Sabha member who stood up to oppose the Bill, because I saw its mischief. And that was that the constitutional amendment only created a judicial appointment commission, but its structure, functions and powers were to be decided by ordinary Parliamentary Legislation, to be passed by simple majority. The Parliamentary Legislation could well provide that the Commission will consist of only one member, the Law Minister alone.
As a result of my serious opposition and explanation of the nature of the fraud under perpetration, the Bill could not be passed in that form, because substantially the entire Opposition walked out in protest and the requisite majority for a constitutional amendment was not available to the ruling party. This virtually saved the nation from reverting to the regime of executive supremacy in the matter of judicial appointment.
The only reform following the 121st amendment and the National Judicial Appointments Commission Act, 2014 is that the constitution of the National Judicial Appointments Commission is now made a part of constitutional Article 124A, and no longer left to the mercy of ordinary parliamentary legislation. However, this Act, fortunately, has not yet come into force. Last week, the Law Department of the University of Bombay organised a full day discussion on the Act, attended by eminent law professors, practicing lawyers, judges and students, and it found no approval from anywhere. For lack of adequate space, I can only point out its main defect, in the vain hope that this Act will not be brought into force until replaced by another or amended in toto. And that is that the Act is very badly drafted, almost justifying the well-known ditty:
"I am the draftsman and I write the country's laws
And of half the litigation I am the cause."