Changes to be made in the appointment process of judges are cause to worry

This discussion expresses doubts on government attempts in effecting changes in the process of appointment of judges. The Congress is unfit for any initiative to be taken by it in the direction because of its old conduct. This can turn up as a clever attempt to impose the superiority of the political leaders over the judges. It would be better to wait for a while. Congress party has always felt uneasy with strong constitutional bodies. Let us analyze what prompts this change.

Law minister Kapil Sibbal has presented the constitution amendment bill in the Rajya Sabha so that for once again, the role of political executive becomes important in the appointment of judges. Along side this; he also brought in judicial appointment commission bill that has been sent to one parliamentary committee. This is true that after the one judgment of SC in 1993, various associations and national commissions had advocated for framing of a transparent system for judge's appointments. Along with the renowned jurists, the parliamentary committees were bating laboriously to introduce changes in the collegium system of appointment of judges that was put in place by the Supreme Court. Ever since the SC has given priority to the Chief Justice and the collegium system in appointing members of the judiciary, the appointment of judges has become fully dependent on the collegium of judges. They only take the decisions of appointments based on the virtues and the vices of a candidate. Numerous institutions have characterized this system as full of flaws in which is included also the 'National Commission to Review the working of the Constitution (NCRWC), which was presided over by the former SC Chief Justice M. N. Venkatachaliah.

Report of M. N. Venkatachaliah committee

This commission presented its report in 2002. The report expressed dissatisfaction on giving preference to the opinion of the collegium overriding the aspects of all other opinions. Among the other aspects was included the president of India too. The committee said that in the article 124, it is clearly mentioned that the power to appoint judges rests with the president and the president uses this power after the advice of the CJI and not in accordance with the advice. In case of S P Gupta, the court had averred that as per article 217(1), all the three sides are standing on the same platform in the matter of appointment of judges, while the SC reversed this judgment in second judge's case (1993). The SC, in the matter of second judge's case delivered the judgment to the effect that the CJI should take the advice from the two senior most justices of the SC also so that the decision does not remain being taken by a single person, rather it should be a collective decision at the apex levels of the judiciary. The Court also added that in the event of differences of opinion between the CJI and the president, this decision shall be nearly binding on the president. According to the bill presented in the parliament, the proposed judicial appointments shall be presided over by the CJI in it would be also two senior most judges of the SC together with the union law minister and two chief individuals as members. The secretary of the justice department of the government of India shall be its coordinator.

Congress feels uneasy with independent constitutional bodies

Despite the necessity of some changes that warrants effecting in the procedure of appointment for judges, we need to tread cautiously regarding the changes being brought in by the Congress led government. There is a simple reason for this. This party has never felt easy with the constitutional institutions. In decade of seventies, Congress has mounted heavy attacks on the apex judiciary. It had ignored the claims of three senior justices in the appointment of CJI. This instance was repeated once again in January 1977 when the Congress government had ignored the seniority of one of the most able justices H R Khanna. This government came forward with the 42nd amendment to weaken the judiciary further. Even after a decisive defeat in Lok Sabha in 1977, no improvement was discernible in the attitude of Congress. After returning to power in 1980, it again started moving on the same old tracks. There was the general debate then that the Congress was in search of judges who could easily be amenable according to its wishes. Several examples of trampling the rights of constitutional bodies have come up of the present Congress led government recently. It has selected unfit individuals as chief election commissioner (CEC) and chief vigilance commissioner (CVC) etc. Not only this, it has been stridently attacking the comptroller and auditor general of India (CAG) for exposing massive scams like 2-G spectrum and coal block allotment. It applied full force to neutralize the independence of CBI and CVC also.

Surprising statements by Congress members against judiciary

Verbal diatribes by Congress members against judiciary are astounding. Its focal point clearly indicates that Congress is hell bent upon trampling on the democratic values and it has a natural inclination towards undemocratic traditions. We must take in account the aggressive stances of the Congress party since 1970 and focus our attention on this aspect that the law minister Kapil Sibbal has been involved in the attack on constitutional bodies as a responsible Congressman. We will have to tread very cautiously on the proposed changes.

The bill provides for appointing a coordinator that would be some one from among the secretaries of the government department. Since the coordinator initiates for the appointment of judges, it is not proper to entrust the secretary of law ministry with such a responsibility. Its reason is simple that bureaucracy work under political pressure.

Fold

Some jurists opine that proposed bill this is the weak link, because, the Congress type of political parties like timid institutions. They can implement the political agenda of self-interests through the medium of bureaucracy. If this proposal is accepted, the significance of the CJI in appointing the judges of India would wane. This bill could happen to be a clever move of imposing political superiority in the appointment procedure of judges. Looking back at the history of Kapil Sibbal's party, it appears there is sure to be something black in the pulses. He has connection with such a party, which had overlooked the appointment of a justice of H R Khanna ilk. It would be better to wait for a while to bring in balance in the procedure of judge's appointment. With its past record, Congress is not reliable for effecting this change. We should save ourselves from falling into the well from pit.