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Updated 19:28 IST | October 10, 2013

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TAGS: Food Security Bill | Land acquisition Bill | CJI Sathasivam | Altamas Kabir | Union Law Minister Kapil Sibal | Rajya Sabha

India Today /Archive / NATION / September 30, 2013 / Story

Executive RevengeExecutive Revenge: The law minister seeks to do away with the collegiu m system of

appointing judges.The legal fraternity is enraged

DAMAYANTI DATTA SEPTEMBER 20, 2013 | UPDATED 13:02 IST

Quietly, while food security and land acquisition monopolised eyeballs and mindspace of the nation, two

intertwined bills moved to the floor of Parliament on September 5. Dense with legalese and long r ambling

sentences, they went over the heads of the aam aadmi. But for those who sense a stake in the future, the two

bills stood on the edge of history.

The Constitution (One Hundred And Twentieth Amendment) Bill, 2013, and the Judicial AppointmentsCommission Bill, 2013, proposed to create new rules for appointing higher judges. "To have best judges for

a better future," said Union Law Minister Kapil Sibal in Rajya Sabha on September 5. What he did not say

was, if implemented, the bills would give the government unbridled power over the judiciary. "Both the bills

are evil and will disturb the basic feature of the Constitution," protested eminent jurist Ram Jethmalani,

the lone dissenting MP. That unleashed a flurry of invective against the judiciary from all sides-some

informed, some angry and some just plain emotional.

How did the judiciary react? "As the CJI, I am not going into the contents of the Bill and how it was passed."

On September 14, when Chief Justice of India P. Sathasivam refrained from public criticism of Pa rliament

at a Bar Association seminar in Delhi, he actually said more than he intended. As Bar m embers raised

questions on the way bills were rushed through, without ever engaging the legal fr aternity, the CJI offered a

cryptic warning: "There is little hope for Rule of La w."

"Call it channelling of irritation and anger of the political class at an activist court, especially since the 2G

case," says political psychologist Ashis Nandy. The acrimonious stand-off between CJI Sathasivam and his

immediate predecessor Altamas Kabir in July also did no good to the image of the judiciary, he adds. There

have also been significant cla shes between the Supreme Court and the government in the recent past over

judicial appointments- or the collegium system.

The collegium system evolved slowly, in the wake of political and judicial milestones like the Emergency of

1975-when judges were browbeaten into submission by the executive. Its current form-where five top

judges of the Supreme Court, headed by the CJI, select judges to higher courts-came out of a landmark

nine-judge Supreme Court verdict of 1993. The government has the option of returning the collegium's

recommendation once, but beyond that it is bound to accept the collegium's diktat.

The bills target this system: First, by seeking to replace the collegium with a J udicial Appointments

Commission (JAC) and, second, by allowing the executive a role to play in judicial appointments. But they

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AFTER SACHIN, THE BIG EMPTY

GOD BYE & T HANK YOU FOR THE MAGIC

Rahul says mum and Manmohan are his political

gurus

may also lead to the dilution of some of the safeguar ds in the current system. For instance, currently,

Article 124(2) of the Constitution allows for a process of "consultation" between the president, the CJI and

other top judges in the appointment process. But now, "consultation" with judges will be replaced by

"recommendation" of the JAC. A new Article 124A states that Parliam ent may, by law, determine the

composition of the JAC, apart from the appointment, qualification, terms of service, functions and manner

of selection of judges.

Another crucial safety shield has been removed in the process: The current system ensures that any change

in selection procedure would need an am endment to the Constitution. But the composition and functions of

the JAC will be determined, by law, by Parl iament. "That means that Parliament with a simple ma jority

can change the composition and function of the JAC or even drop members," says legal scholar N.R.

Madhava Menon. The composition of the JAC will have a heavy tilt towards the executive: Apart from the

chief justice of India, two senior-most judges from top court and Union law minister, there will be two

"eminent persons" nominated by a collegium consisting of the prime minister, CJI and leader of Opposition

in Lok Sabha. "How is it an improvement on the current collegium system," asks Jethmalani. More

alarming is the detail that the composition of JAC is not specified in the Constitution but in a proposed act

of Parliament. "That l eaves scope for altering the structure and purpose of the JAC at a later date," he says.

At stake is the basic structure of the Indian Constitution: Article 50, which mandates that the judiciary

must be kept separate from the executive. "Every c ountry has to work out its constitutional salvation taking

into account its peculiar problems and specific needs," says former attorney general Sol i Sorabjee. As the

biggest litigator, the government cannot have any control over the appointment of judges. And the courts

must deal with every litigant, including the government, on the merits of their case. It was in the

Kesavananda Bharati vs. State of Kerala case of 1973 that the "basic structure" of the Constitution

emerged. Despite an intense floor fight, the fate of the bills hangs in limb o. The bill amending the

Constitution was passed in Rajya Sabha but got stalled in Lok Sabha. The second bill was referred to a

parliamentary committee.

But all eyes are now on the Supreme Court: Will the bills pass the glare of judicial scrutiny? Standing on the

cusp of a judicial whirlwind, the CJI may go down in history as one who allowed judicial autonomy to be

trampled. Or he m ay be remembered as one who resisted executive overreach. Whichever way things turn,it will be history in the making.

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