Mains Paper 2: Polity | Appointment to various Constitutional posts, powers, functions and responsibilities of various Constitutional Bodies
Q.) “The proposal to create an All-India Judicial Service (AIJS) along the lines of the All India Services (AIS) is one that has been endlessly debated since the idea was first mooted by the Law Commission in the 1950s.” Critically examine.
From UPSC perspective, the following things are important:
Prelims level: Article 312
Mains level: It is a vary important topic. Read every article on this topic, very carefully.
- The article is related to the proposal to create an All-India Judicial Service (AIJS) along the lines of the All India Services (AIS)
- It is in news because the debate has once again started with a fresh move to implement it and nine High Courts expressing their disapproval
Brief outline of the AIJS
- District judges will be recruited centrally through an all-India examination and allocated to each State along the lines of the AIS
- This will ensure a transparent and efficient method of recruitment to attract the best talent in India’s legal profession
Objection against AIJS
- The first objection to this idea is that it does not adequately diagnose the problem
- Important Question: What exactly is holding back the smartest and the best from the judiciary?
- The answer lies in the fact that the Bar Council of India has mismanaged legal education
- Almost no effort has gone into improving the standard of legal education across the country
Why are best talents in law field not joining Judicial Services?
- The judiciary offers very unremunerative pay and limited avenues for career advancement
- While a lot of effort has been undertaken by the Supreme Court to ensure uniformity in pay scales across States through its orders in the All India Judges’ Association case
- But still it is very low when compared to that in the private sector, notably law firms, litigation and the corporate sector
- A civil judge (junior division), and the lowest entry level post, can expect a basic pay of Rs. 27,700 per month.
- Top graduates can expect to earn at least three times as much in Indian law firms in equivalent entry level positions
- Lower pay would also be acceptable, if the position was accompanied by a defined career progression
- According to a study published in the Economic and Political Weekly in 2016, less than a third of seats in the High Courts are filled by judges from the district cadre
Issues with ‘National Exam’
- It may end up not taking into account local laws, practices and customs
- These points vary widely across States, and this will increase the costs of training for judges selected through the mechanism
The way forward
- The problems of the Indian judiciary at all levels have reached catastrophic levels
- The public is losing confidence in the judiciary
- None of the problems related to judiciary will be solved to any degree by centralising the manner of recruitment of judges
- This matter should be treated expeditiously
- If the collegium was not revived, then there were chances that President may become a tyrant by assuming absolute powers to appoint judges on his own.
- This is how the Supreme Court’s Constitution Bench explained its decision to restore the collegium.
- Previously, Solicitor-General had argued against the revival of the collegium in case the Bench decided to strike down the NJAC.
- This would have given rise to a void, where President would assume absolute powers to appoint a judge to the SC without consulting the CJI.
Justice Kurian said that Constitutional amendment is a substitution and once the substitution was held to be bad in law, the original provision would return to life.
The collegium system remains operative
- Declaring that the judiciary cannot risk being caught in a “web of indebtedness” towards the government, the SC rejected the NJAC Act and the 99th Constitutional Amendment.
- The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.”
- But interestingly, the Bench admitted that all is not well even with the collegium system of “judges appointing judges”.
After receiving Presidential assent on Dec. 31, 2014, the collegium system of appointing judges to the SC and high courts was replaced by a new body called the National Judicial Appointments Commission.
The NJAC Conundrum – A tacit attempt to subvert the independence
of Judiciary or a panacea for Judicial Accountability? Discuss.
Feel free to air your views, opinions, queries, inputs. You may take a
cue from the following but are free to digress within the scope of the
discussion at hand:
- The Highlights
- Present Status
- The SC debate
- Collegium vs NJAC
- Any Global Experience
- Proponents vs Opponents
- Op-ed suggests that besides the binary options of accepting or striking down the NJAC, the SC can also try to find a middle path and interpret it in a way that is constitutional. Following are some proposals:
- Defining ‘eminent’ person more narrowly with little scope of exploitation.
- Modifying the process of appointment of ‘eminent person’ and providing strict guidelines.
- Increasing judiciary’s say in the NJAC by giving exclusive veto power to judges.
- Laying down fixed rules and regulations to be followed in the appointment of judges.
- Op-ed also suggests that in doing so, the SC must maintain the thin line between judicial interpretation and legislative amendment, failing which the judiciary could be seen as overstepping in the legislature’s turf.
As per the Second Judges Case, the Constitution Bench of the SC hearing a petition challenging NJAC Act and CA Act might find it difficult to strike down the laws on the grounds that they destroy judicial independence and hence the basic structure of the Indian Constitution.
- Regular evaluation of judicial performance is a springboard for ensuring greater judicial accountability but we do not have any institutional mechanism.
- Judicial accountability promotes 3 discrete values – rule of law, public confidence in the judiciary and constitutional responsibility.
- Our constitution protect judges against the will of the masses, the will of parliament and the will of central government but does not provide provide for the accountability of judges.
- According to the constitution judges can be impeached by parliament on the ground of proved misbehaviour or incapacity.
- US has a merit plan under which not only are the judges appointment on merit but their continuance in office is decided on the basis of nonpartisan elections.
The debate was triggered by counsel Anil Divan, who said the NJAC Act was flawed as the commission would be totally dependent on inputs from government departments.
“But you have to trust someone. What if we remove the Executive from the appointment process? How will they [NJAC] get information? Only the government has the machinery to gather intelligence on the sensitivity, family, integrity, etc., of a person under consideration … This is the fact, whether you like it or not,” Justice J.S. Khehar, who heads the five-judge Constitution Bench, told Mr. Divan.
- The NJAC Act did not spell out the criteria to select “eminent persons”.
- We wonder if “eminence” in the NJAC Act was the same quality the government had found in a person chosen to head the Film and Television Institute of India.
When you say someone should be ‘fit’ to be a judge, do you mean that we will need a medical certificate saying it is assured we will live till 65 years of age?
A provision in the NJAC Act, dealing with the appointment of the Chief Justice of India says the senior-most judge would be appointed CJI, provided he is “fit.”
- SC objected to the Centre’s argument that the National Judicial Appointments Commission should be given a chance under the ‘hit-and-trial’ method.
- Attorney General, Mukul Rohatgi pleaded that The NJAC is a wholesome mechanism in which the voice of the people plays a part in the judicial appointments.
- The Bench had asked Mr. Rohatgi to hand over a list of bad appointments of judges made by the Supreme Court Collegium during the last two decades.
- Can yoga guru Ramdev, conferred cabinet rank by the Haryana government, qualify to be an eminent person for inclusion in the 6-member National Judicial Appointments Commission created to selecting judges?
- The 5-judge constitution bench headed by Justice JS Khehar appeared to agree with this reasoning.
- The bench said, “We will ask the AG how the NJAC can provide a meaningful role to the judiciary. How can the participants be made accountable?”
- Centre’s argument – Parliament had created NJAC to broad-base the judges’ selection process by including all three organs of governance – judiciary, executive and legislature – instead of leaving it only to judges.
- Ram Jethmalani, arguing against said that the SC-devised collegium system protected the independence of judiciary & it had just one flaw – of being non-transparent.
- Justice Khehar gave an example, “Parents of a child do look for a groom or a bride for their child. The match works well some times and some times doesn’t. When it doesn’t, it does not mean that the parents have become bad.”
- In a sharp criticism of the highest judiciary, the Centre said – there is no place for merit.
- Mukul Rohtagi gave the examples of apex courts in countries such as the USA where the Chief Justice was the youngest among the sitting judges.
- Wording of Section 5 (1) of the NJAC Act seems vague.
- The provision dealing with the appointment of the Chief Justice of India says the senior-most judge would be appointed CJI, provided he is “fit.”
- “What does fit mean here? Does this mean a person is suitable if he is fit or strong?”
- Why? because the body (NJAC) sought to be created, does not have the salient features of the body (collegium) substituted.
- Arguments – In the NJAC, no “weightage or primacy” has been given to the views of the CJI in selection of judges.
- Who will decide if the panel gets divided vertically on the question of appointment of a judge.
- “Preponderance” of views of 3 senior most judges of the apex court, as recommended by the Venkatachaliah panel, has not been not provided for by the NJAC Act.
- CJI H.L. Dattu has declined to join the NJAC until the SC decides on its constitutional validity.
- The CJI’s recusal brought the NJAC to a grinding halt as it was likely that two senior-most judges of the SC, who are members of the commission, would follow suit.
- Arguments from Mukul Rohtagi – The Constitution provides that eminent persons will be selected by a troika of PM, CJI and leader of opposition. Can the mandate of the Constitution be stultified? How can that be?
- Senior advocate Fali Nariman pointed out there is a clear conflict of interest as Justice Dave is also a member of the NJAC.
- Justice Dave, who heads the five-judge bench, is the third senior-most Supreme Court judge.
- He is also a member of the NJAC as per the statute which prescribes that the six-member Commission will have the CJI and the next 2 senior most judges as its members.
- The notification brings into immediate effect the National Judicial Appointments Commission Act, 2014, and the 99th Constitution Amendment Act.
- Now, the political class and civil society have an equal voice, along with the judiciary, in the appointment and transfer of judges in the highest judiciary.
- While referring the petitions to a larger Bench, the SC had refused to pass a stay order on the law coming into force.
- The Attorney-General (Mukul Rohtagi) & Sr. Advocate (Fali Nariman) have locked horns on the bill.
- Interestingly, AG says that the court cannot test the constitutional validity of the NJAC until the law was notified. Prez. has given its assent to the bill but Gov. has not yet notified.
- Fali Nariman held a view that – “The moment an enactment comes into operation, it becomes law and can be challenged on any permissible grounds.”
- What was? The Collegium system is one where the Chief Justice of India and a forum of 4 senior-most judges of the SC recommend appointments and transfers of judges.
- The system was evolved through Supreme Court judgments in the Three Judges Cases. However, it has no place in the Indian Constitution.
- The 99th amendment to the Constitution introduces NJAC, replacing the Collegium system.
- Under Article 124A, the NJAC has 6 members – the CJI, 2 senior-most judges. The remaining 3 are the Union Law Minister and two “eminent persons”.
- They are to be appointed by the PM, the Leader of the Opposition and the CJI.
Instead of seeing the NJAC verdict as one that leads to a confrontation between the Parliament and the judiciary, the executive must use this as an opportunity to help the Supreme Court in preparing an institutional design so that appointments are fair and transparent.
Two days after the Supreme Court pronounced its verdict on the 99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring them to be ultra vires the Constitution.
Questions on judicial review
The reaction of the executive to the NJAC verdict raises the fundamental question,
“Should the exercise of power of judicial review depend upon the will of the Parliament?”
Indian Constitution, unlike the Constitutions of USA and Australia, does not have an express provision of separation of powers but its sweep, operation and visibility are not unclear.
While it is the Parliament’s prerogative to amend the Constitution and make laws, the duty to decide whether the basic elements of the constitutional structure have been transgressed has been placed on the judiciary.
The power to strike down offending amendments to the Constitution on the touchstone of basic structure can be exercised by the superior judiciary alone, uninfluenced by the will of the Parliament.
Our Constitution has given the power of judicial review to the unelected superior judiciary to declare ‘unconstitutional’ a legislative act, once it is found to be violative of the basic structure.
What remains of democracy if there is no rule of law?
The institutional arrangement at the heart of our democracy provides that the will of the people, as reflected in the decisions their elected representatives, is subject to the will of the Constitution, as reflected in the decisions of an independent judiciary.
Parliamentary supremacy refers to the power of Parliament to make laws within the limits imposed by the Constitution.
It also denotes the supremacy of Parliament over the executive, primarily through the accountability of the Council of Ministers to Parliament.
All the three organs of the state derive the power and jurisdiction from our Constitution. Each must operate within the sphere allotted to it.
Judicial function is also a very important sovereign function of the state and provides the foundation for rule of law.
Is it good that judges appoints Judges in India?
It is not wholly correct to say that judges appoint judges in India as consultative participation of the executive is present in the institutionalised procedure prescribed after the Third Judges case.
But assuming it to be so, ours is perhaps the only country where the government is the biggest litigant before the courts, Isn’t it?
Why is this so?
We are one of the very few countries where actions of the political executive in diverse fields, ranging from violation of human rights to wrongful distribution of natural resources and wide range of issues which have huge political ramifications, are brought before the superior judiciary in the public interest litigation (PIL) .
Can judges who are appointed with the direct say of the government be relied upon to deliver neutral and high-quality decisions in such matters?
It is no exaggeration to say that appointment processes shape the ability of courts to hold political institutions to account.
Veto to non-judicial members
In the Second Judges case, the nine-judge Bench exposited that appointment of judges to High Courts and the Supreme Court forms an integral part of the basic structure of our Constitution.
Therefore, the executive cannot interfere with the primacy of judiciary in the matter of appointments.
The NJAC’s flawed composition consisted of the fact that it merged certain components, reflected in the inclusion of Law Minister and two eminent persons and giving any two members the power to veto the decision of the other four.
This directly affected the independence of judiciary in the judicial appointments process.
Way Forward to Fair and Transparent system
Democratic values are strengthened not only by a strong legislature but also by a strong judiciary so that together a mutually respectful and independent partnership on the public’s right to justice is maintained.
The judges who delivered the judgment in the NJAC case also hold the view that an improvement in the working of the collegium system is the need of the hour.
Demands of the Constitution can override the wishes of the people expressed through elected governments.
These are at the very core of a democratic commitment to judicial independence and constitutional supremacy.
In the words of Alexander Hamilton, one of the framers of American Constitution, “where the will of the legislature declared in the statutes is in opposition to the Constitution, the judges ought to be governed by the latter, rather than former.”
Published with inputs from Arun