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30 July, 2014

Restoration of balance

BRP Bhaskar
Gulf Today

For two decades India’s Judiciary has been working as a self-propagating entity, with three to five persons at its top deciding who should be admitted to the club.

The Constitution, promulgated in 1950, envisaged a system of mutual checks and balances by the three limbs of the state – the Executive, the Legislature and the Judiciary. It vested the power to appoint judges of the Supreme Court and the State High Courts in the President.

He was required to hold consultations with the Chief Justice of India and such other judges as he may deem necessary before appointing a judge. In the case of High Court judges, the consultation process was to include the State Governor and the Chief Justice of that court also.

Since the President and the Governor are bound to act upon the advice of the respective Council of Ministers, the scheme assured the Executive a decisive say in appointments. The relevant provisions of the Constitution remain unchanged, but after three decisions handed down by the Supreme Court between 1981 and 1998 the last word on appointments rests with the Judiciary.

When Indira Gandhi’s government initiated a move for transfer of judges from one high court to another, in view of the experience of the 1975-77 Emergency, it was perceived as an attempt to control the judges. Concerned citizens, mostly lawyers, filed petitions in several high courts challenging the move.

The Supreme Court transferred all the petitions to itself for consideration. A constitution bench headed by PN Bhagwati, which heard them, held that the Executive could turn down the Chief Justice’s recommendations with regard to appointments and transfers for cogent reasons.

However, the government did not spell out the reasons when it disagreed with the Chief Justice’s recommendations.

In 1993 the issue was raised in the Supreme Court again by an association of Supreme Court lawyers. A nine-judge bench, by a majority decision, laid down that the Chief Justice’s recommendation will be final. The Executive could ask him to reconsider the recommendation. If, upon reconsideration, he reiterated it the President had to act upon it.

The bench also laid down guidelines and a time schedule for selection of judges even though the petition had not raised these issues and no arguments had been heard on them.

The judgment, written by JS Verma, claimed it was restoring to the Chief Justice the primacy which he originally had. It was a false claim. That the makers of the Constitution did not grant him primacy is evident from the words of its chief architect, Dr BR Ambedkar. He told the Constituent Assembly that to allow the Chief Justice a veto upon the appointment of judges was to transfer to him the authority they were not prepared to vest in the President or the government of the day.

The judgment extracted from the Chief Justice a price for the primacy it granted him. It made it obligatory for him to involve his two seniormost colleagues in the decision-making process. Thus was born the collegium of judges. It is an institution which was not created by the Constitution but was conjured up by Verma and his colleagues to fictionally represent the Judiciary as a body.

In 1998 a bench headed by SP Bharucha, while answering a Presidential reference, enlarged the collegium to include four seniormost judges, instead of just two.

The three decisions, which resulted in the Judiciary acquiring powers which the Constitution or the laws did not bestow on it, came when the Executive and the Legislature were weak and could not resist the encroachments into their spheres. Attempts by the first National Democratic Alliance government and the second United Progressive Alliance government to enact a law to establish a Judicial Commission to deal with the appointment and transfer of judges did not succeed.

The Narendra Modi government recently turned down a collegium decision. Since the person whom the collegium had recommended for appointment withdrew his consent to serve as judge the Chief Justice’s primacy was to no avail.

The establishment of a judicial appointments commission which functions in a transparent manner is necessary to restore the constitutional balance upset by Supreme Court decisions. The government’s decision to hold consultations with political parties and jurists for the purpose is a welcome step. -- Gulf Today, Sharjah, July 30, 2014.

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