A flawed mechanism

Print edition : June 06, 2003

The Constitution (98th Amendment) Bill, which seeks to ensure transparency in judicial appointments by constituting a National Judicial Commission, has serious flaws that can defeat its very objective.

in New Delhi

Union Law Minister Arun Jaitley.-S. THANTHONI

THE Constitution (98th Amendment) Bill, introduced in the Lok Sabha during the Budget session, seeks to constitute a National Judicial Commission (NJC) - by including Chapter IV A in Part V of the Constitution - which will be in charge of appointing Judges to the higher judiciary and for transferring High Court Judges. The Bill, which has been referred to the Standing Committee, also seeks to empower the NJC to draw up a code of ethics for Judges, inquire into cases of misconduct or deviant actions of a Judge other than those that are punishable with his or her removal, and advise the Chief Justice of India (CJI) or the Chief Justice of a High Court appropriately after such inquiry.

The Bill is seemingly based on a political consensus, as most political parties and groups, including the National Democratic Alliance (NDA), the Congress(I), and the Left parties, had in their 1999 Lok Sabha election manifestos promised to create an NJC. However, political observers expect differences to crop up over the composition of the NJC and its effectiveness in checking judicial corruption.

According to the Bill, the NJC would consist of the CJI, who would be its chairperson; two Judges of the Supreme Court next to the CJI in seniority; the Union Minister for Law and Justice; and one eminent citizen to be nominated by the President in consultation with the Prime Minister, who will hold office for a period of three years. The Bill envisages that in the case of appointment or transfer of a High Court Judge, the Chief Justice of that court and the Chief Minister of that State (or the Governor, if the State is under President's Rule) shall be associated with the NJC.

The Bill aims to provide the effective participation of both the executive and the judiciary through the NJC. It cites the recommendation of the National Commission to Review the Working of the Constitution (NCRWC) that an NJC be established for the appointment of Judges to the Supreme Court.

Law Minister Arun Jaitley, who introduced the Bill, stated that the main objective of setting up the Commission was to bring about transparency in the appointment of Judges. However, the Bill apparently has certain serious flaws, which can defeat its very objectives.

The rationale for the Bill is the general dissatisfaction with the present system of appointment and transfer of Judges of the higher judiciary and the in-house procedure evolved by the Supreme Court to inquire into cases of misconduct or deviant behaviour by Judges.

In what is known as the Third Judges Case (1998), a nine-Judge Bench of the Supreme Court, exercising its advisory jurisdiction under Article 143 of the Constitution, created the present system of a collegium of the CJI and two senior Judges of the Supreme Court to recommend names for appointment as Judges of the Supreme Court. The Bench created a collegium comprising the CJI and four senior Judges to review recommendations made by a similar collegium in the High Courts in the case of appointment of Judges to these courts.

In the Second Judges Case (Supreme Court Advocates on Record Association vs. Union of India - 1993), the Supreme Court had introduced the concept of primacy of the CJI in the matter of recommending persons for appointment to the higher judiciary. It had led to misgivings whether during consultations to select Judges the CJI's individual opinion, if found arbitrary, could still prevail over that of the government. The President's reference to the Supreme Court under Article 143, which resulted in the judgment in the Third Judges Case, was a consequence of this apprehension.

However, the performance of the collegium, in the words of former Supreme Court Judge and eminent jurist V.R. Krishna Iyer, has hardly been creditable. "It has often been dilatory, arbitrary, and smeared by favourites," he said in a recent newspaper article. In his view, judicial selection is not a secret operation; the names proposed must be available for the people to know and respond to.

Despite the avowed objective to ensure transparency in the selection process, there is nothing in the Bill that makes transparency mandatory. It empowers the NJC to regulate its own procedure. With three judicial members and two executive appointees, the Commission is under no obligation to make its selection process public or declare the rationale behind its decisions. Curiously, the Bill reveals that the NJC's recommendations for the appointment and transfer of Judges will be binding on the President. but it is silent on whether the NJC's advice to the CJI or the Chief Justice of a High Court, after an inquiry into a charge of misconduct or such deviant behaviour by a Judge, will be equally binding on those authorities. Critics, therefore, ask whether the NJC would make any substantial differ<147,1,7>ence to the existing system.

The Supreme Court of India building.-

The establishment of an NJC and its composition, in the opinion of the NCRWC should be treated as integral in view of the need to preserve the independence of the judiciary. The Bill, however, empowers the President to choose the eminent member of the NJC in consultation with the Prime Minister. With two political appointees on the NJC sharing the responsibility to draw a code of ethics for Judges and to inquire into charges of misconduct against Judges, will judicial independence not be compromised, observers wonder.

Again, the NCRWC wanted to exclude political appointees from examining complaints of deviant behaviour against Judges and recommended that only a committee comprising the CJI and two senior-most Judges of the Supreme Court be empowered to do that. The NCRWC suggested the creation of the NJC only to choose Judges of the Supreme Court, not of the High Courts. With such major deviations from the NCRWC's proposals, the Bill's claim to attribute its own origin to NCRWC recommendations appears to be baseless.

The Committee on Judicial Accountability (CJA), a body of eminent legal experts, has criticised the Bill for what it lacks. The CJA has consistently demanded the creation of an NJC. However, in the CJA's view, the NJC should not include any member of the judiciary or the executive. "The NJC should consist of former Judges, eminent advocates, and legal experts. Only then can it ensure objectivity and transparency in the process of selection of Judges and disciplining Judges accused of misconduct,'' said Supreme Court advocate and a spokesperson for the CJA, Prashant Bhushan.

THE Contempt of Courts (Amendment) Bill, introduced in the Lok Sabha, is also likely to become a controversial piece of legislation. It adds a proviso to Section 13 of the Contempt of Courts Act, 1971, to provide that the court may permit, in matters of contempt, the defence of justification by truth on satisfying itself about the bona fides of the plea and it being in the public interest. Section 13 of the Act lists certain circumstances under which contempt is not punishable. Truth is currently not recognised as a legitimate defence of an alleged contemner under the Act. The issue raised by a few litigants is awaiting final resolution by a Constitution Bench of the Supreme Court as it has been interpreted in various judicial decisions that truth cannot be a defence to the charge of contempt of court.

The Bill aims to introduce fairness in the procedure and meet the requirements of Article 21, guaranteeing protection of life and personal liberty. It finds it anomalous that while Satyameva Jayate (Truth alone triumphs) is the motto of the nation, truth should not be available as a defence.

Again, the Bill marks a departure from the NCRWC's proposal. The National Commission felt that mere legislation by Parliament amending the Act might not suffice because the power of the Supreme Court and the High Courts to punish for contempt is recognised in the Constitution. Therefore, it suggested an appropriate amendment by way of the addition of a proviso to Article 19(2), which saves reasonable restrictions on the exercise of the right to freedom of speech and expression, guaranteed under Article 19(1)(a). The Bill, rather than add such a proviso to Article 19(2), adds a similar proviso to the Act, raising the question whether it is the appropriate way to remove the lacuna in the Constitution.

The CJA has welcomed the addition of this proviso to the Act, but it has deplored the fact that the Bill ignored its demand to repeal Sub-section 2 (c) (i) of the Act, which includes "scandalisation of the court'' in its definition of criminal contempt. This sub-section, according to many observers, has given the courts enormous powers to question and punish even people making legitimate and valid criticism of court judgments, or those making innocuous and general comments on the courts' attitude or functioning.

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