Millennium Post

JAC a welcome change but there is room for judicial improvement

Change is inevitable, governments change, trends change, one system makes way for another, and it could be for the better or worse. Nevertheless, change is constant and if it is in a positive direction it should be welcomed. Very soon the collegium system of appointing judges could be replaced with a judicial appointments commission (JAC), which would take up the mantle of appointing and transferring judges. The objective behind the move is to bring transparency in the system as opposed to the present opaque system of judges appointing judges and judges judging them.

What the framers of the Constitution had envisaged? Even the framers of the Constitution never envisaged a system like the one in practice. The judge’s cases have interpreted the word consultation under Articles 124 and 217 to mean concurrence and therefore, it has become necessary to restore the balance which the Constitution makers had envisaged. It would be pertinent here to revisit the constituent assembly debates where B R Ambedkar spoke on the issue of concurrence with the chief justice regarding appointment of judges to the higher judiciary. He said, ‘With regard to the question of the concurrence of the chief justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the chief justice and the soundness of his judgment. I personally feel no doubt that the chief justice is a very eminent person. But after all the chief justice is a man with all the feelings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the president or the government of the day. I therefore, think that is also a dangerous proposition.’

The founding fathers had the foresight to see the dangers that a system with unequal participation in the selection of judges could pose to the institution and to the nation at large in the post-independence era.

Therefore the expression ‘consultation’ was used to ensure that no single authority could wield absolute power. In the early post-independence years, judicial appointments were made according to plan [Fali S. Nariman, Before Memory Fades: An Autobiography, New Delhi: Hay House, 2010]. Therefore it was considered appropriate to seek the opinions of the CJI and the chief justice of the relevant high court.

There was a visible change in the appointment procedure in the 1970s, the decade that witnessed sharp conflicts between the political class and the judiciary [Zia Mody, Ten Judgments That Changed India, New Delhi: Penguin, 2013].

In 1982, the union law minister issued a circular to the Punjab governor and chief ministers of all states except the north-eastern ones stating that one third of judges in every court must come from outside. The intention was to promote national integration. This caused uproar in the country and the constitutional validity of such a move was questioned, and this is how the First Judges case became a part of history. In the First Judges case [S P Gupta v. Union of India 1981 Supp(1) SCC87], the court said that the executive is the final authority on the appointment of judges.

By the time the Second Judges case [Supreme Court Advocates-on Record Association v. Union of India (1993) 4SCC441] came before the supreme court, the judiciary wanted to nurse the self-inflicted wound and thus retained complete control over the appointment of judges to the higher judiciary.

The supreme court said that consultation with the CJI would mean a binding consultation on the government. The court held that the word consultation had to be interpreted in the constitutional context which aims at maintaining the independence of the judiciary.

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