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A ‘committed judiciary’?

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The Judicial Appointments Commission Bill, passed by the Rajya Sabha on Thursday, looks suspiciously like an attempt to take the judiciary back to the...

The Judicial Appointments Commission Bill, passed by the Rajya Sabha on Thursday, looks suspiciously like an attempt to take the judiciary back to the days of the Emergency when Indira Gandhi called for a “committed judiciary”. Since the then Prime Minister and her advisers never cared to explain to whom the judiciary had to be “committed”, it was widely believed that they wanted the judiciary to become a plaything in the hands of the Executive.

That public suspicion had been confirmed by the then dispensation which changed and superseded judges even of the Supreme Court as one would change clothes. But today’s India is totally different from that in which the Executive, arrogating to itself powers not conferred on it by the Constitution (which had anyway been suspended) could do its thing.

That fact makes it all the more surprising that the Rajya Sabha should have passed The Judicial Appointments Commission (JAC) providing for a broad-based appointment process for Judges of the High Court and the Supreme Court, giving equal say to the Executive. Where does that leave the principle of separation of powers among the Legislature, Executive and the Judiciary laid down by the Constitution? It may not happen that way, certainly not always, but people will believe that if the Government has a say in judicial appointments at the highest level, it might someday demand a say in the judgments that such judges may deliver.

The JAC is to consist of the Chief Justice of India, an ex-officio chairperson, two Supreme Court judges next to the CJI in seniority as ex-officio members, the Union Law Minister and two eminent persons to be nominated by the collegium consisting of the Prime Minister, the CJI and the Leader of the Opposition in the Lok Sabha, as members; and the Secretary in the Department of Justice in the Law Ministry will be the convener. The Government and Opposition presented a joint front in attacking the judiciary on everything from corruption, favouritism and nepotism to compromises due to lust of post-retirement jobs--benefits, while discussing the Bill to scrap the collegium system of appointing judges.

The Bill, giving the 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 the Opposition Arun Jaitley and several other members said that the present system of appointing judges to the Supreme Court and high courts lacked transparency and accountability.
BJP members said though they supported the Bill, they wanted wider consultations before passing it. Jaitley said that the aim was to make the Judges of higher courts “accountable”, without saying to whom they should be accountable. Experts believe that Judges need to be accountable only to the Constitution which they are meant to interpret. It is true that the campaign against the collegium gained momentum with lawyers of the Punjab and Haryana High Court alleging that favouritism and nepotism were determining the appointments of Judges of the High Court.
It cannot be denied, either, that some former Judges of the Supreme Court had also opposed the collegium system. But it would have been one thing to collect the views of the critics and streamline the functioning of the Collegium, and quite another to scrap it. What about the views of the present Chief Justice of the Supreme Court and his immediate predecessor, both of whom wanted the collegium system retained? Little wonder, therefore, that the Bill passed on Thursday looks calculated to settle scores with the judiciary which has recently given many verdicts unpalatable to the political class.
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