The Government of India has passed the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 seeking amendments to Articles 124, 127, 128, 217, 222, 224 and 231 of the Constitution of India and the National Judicial Appointments Commission Bill (NJACB) , 2014 in the Lok Sabha today i.e. 13 August 2014. The Bills, if adopted by the Rajya Sabha, will replace the existing system of appointment and transfer of High Court and Supreme Court judges. The Supreme Court of India in the Three Judges Cases laid down the guidelines for appointment and transfer of judges of the High Courts and the Supreme Court since 1993 through collegium system of the judiciary headed by the Chief Justice of India.
There is no doubt the collegium system has developed serious flaws. In direct reference to these flaws, the NJACB, 2014 is littered with words such as “ability” and merit”. The appointment and rejection of judges through the collegium system had been marred by personal preferences and rivalries of those selecting/appointing the judges. Justice Markandey Katju, current Chairperson of the Press Council of India, recently highlighted elevation of alleged corrupt judge Justice S. Ashok Kumar as a Madras High Court judge under the pressure of the Dravida Munnettra Kazhagam, a Tamil political party and an alliance partner of the previous United Progressive Alliance (UPA) government at the Centre.
However, the cure being suggested for the ills of the collegium system is worse than the disease. The Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 and the NJACB, 2014 only establish the supremacy of the Executive over the judiciary in matters of appointment and transfer, for which India shall have to pay a heavy price.
If certain Chief Justices had failed to stand up to pressure of then UPA Government, which itself was under pressure from the DMK, for the elevation of Justice S. Ashok Kumar, it is unlikely that in future, members of the National Judicial Appointments Commission shall be able to stand up to any government. Justice Katju failed to highlight that even under the collegium system many a judges were appointed because of the proximity to the Law Minister rather than ability and merit.
In the final analysis, selection or rejection of a judge under the collegium system may not meet the litmus test of choosing the best judge because of “personal preferences” or “differences” of those who are selecting/appointing the judges but damage in such cases is limited to personal “preferences” or “differences”. However, when the Government through the Law Minister appoints or rejects judges because of political or ideological “preferences” or “differences”, the appointment and rejection of judges has the potential to impact the entire nation.
Unqualified “eminent persons” for the National Judicial Appointments Commission?
In order to address the problems with “ability and merit” in the collegium system, the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 proposes establishment of the National Judicial Appointments Commission. Apart from the Chief Justice of India serving as ex-officio chairperson, two other senior Judges of the Supreme Court next to the Chief Justice of India and the Union Minister in charge of Law and Justice, Section 3 of the proposed Bill inter alia provides that “(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People”.
However, the selection of the “eminent persons” in the National Judicial Appointment Commission itself does not meet the test of objectivity on various grounds.
First, the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 fails to address the lack of confidence in the existing track record of the Government of India for selection of members of various National Commissions through a procedure as provided in the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014.
In 2010, the Government of India appointed Mr P J Thomas as Chairman of the Central Vigilance Commission despite opposition from then leader of the opposition in the Lok Sabha, Ms Sushma Swaraj on the ground that Mr Thomas was chargesheeted in the Palmolein old case. Thereafter, on 3 March 2011, the Supreme Court of India in the case of Centre for PIL & Anr. ... versus Union of India & Anr. (Writ Petition (C) No. 348 of 2010) declared appointment of Mr Thomas as “non-est in law” and quashed his appointment.
However, the Government of India failed to learn any lesson. It appointed Justice Cyriac Joseph on 27.05.2013 and Mr Sarat Chandra Sinha on 08.04.2013 as members of the National Human Rights Commission despite then leaders of Opposition, Sushma Swaraj in the Lok Sabha and Arun Jaitley in Rajya Sabha, recording their dissent against their appointments. 
Second, the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 fails to specify the criteria including educational qualifcation of the “eminent persons” except that one of them shall be a person “belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women”. That can never be the only criterion for selection of the eminent persons.
Third, the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 fails to lay down procedure for selection of the members of the National Judicial Appointments Commission. While the National Judicial Appointments Commission Bill, 2014 emphatically states that “the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation”, there is no such provision to bar appointment of members of the National Judicial Appointments Commission in case any appointing committee member opposes. This is despite the judgement of the Supreme Court in Centre for PIL & Anr. ... versus Union of India & Anr. (Writ Petition (C) No. 348 of 2010) with respect to quashing of appointment of Mr P J Thomas as the Central Vigilance Commissioner.
Fourth, the Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 creates conflict of interest for the Chief Justice of India in his/her capacity as the ex-officio Chairman of the National Judicial Appointments Commission. Section 5 of the NJACB, 2014 provides that “a member of the Commission whose name is being considered for recommendation shall not participate in the meeting”. However, if such a person is appointed as Chief Justice of India, s/he may be required to adjudicate on the validity of the appointment of the “eminent persons” with whom he/she will be taking decisions on appointment and transfers of the judges.
The intention of the Government of India is suspect. The Bills are nothing but an attempt to wrest the appointment and transfer of judges from the judiciary and establish supremacy of the executive over the judiciary.
It was none other than Justice P N Bhagwati, the most quoted Indian judge, who not only upheld in the ADM Jabalpur v. Shivkant Shukla case that during emergency the right to habeas corpus can be suspended but also wrote a flattering letter to then Prime Minister Mrs Indira Gandhi as sitting judge of the Supreme Court describing her comeback following 1980 elections as "the reddish glow of a golden sunrise". The history of Indian judges shows that Justice H R Khanna, the only judge who opposed the suspension of the right to habeas corpus during emergency in the ADM Jabalpur case, has been the exception while Justice Bhagwatis have been the rule.
Insulating judiciary from political processes is indispensable for ensuring independence of judiciary. The Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 and the National Judicial Appointments Commission Bill (NJACB), 2014 exactly seek to do the opposite. The problems with the collegium system must be addressed by making the collegium system more transparent and accountable, and not by wresting the control for appointment and transfer of judges from the judiciary.
The Constitution (One Hundred and Twenty-First Amendment) Bill, 2014 and the National Judicial Appointments Commission Bill (NJACB), 2014 should be opposed unless the supremacy of judiciary is restored and the judiciary is fully insulated from the political processes. The Bills should be referred to a Parliamentary Select Committee and wider consultation must be held with all the stakeholders.
Independence of judiciary is too sacrosanct to be compromised in any country claiming to be democratic and governed by the supremacy of the rule of law.
1 . The Bill is available at http://www.prsindia.org/uploads/media/constitution%20121st/121st%20%28A%29%20Bill,%202014.pdf
2 . The Bill is available at http://www.prsindia.org/uploads/media/national%20judicial/National%20Judicial%20Appointment%20comm%20bill,%202014.pdf
3 . The cases are S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case) and Supreme Court Advocates-on Record Association vs Union of India – 1993 and Special Reference 1 of 1998
4 . The judgement is available at http://indiankanoon.org/doc/310431/?type=print
5 . As cited in Two NHRC appointments in 2013 violated SC norms. The Times of India, 26 July, 2014.Available at http://timesofindia.indiatimes.com/india/Two-NHRC-appointments-in-2013-violated-SC-norms/articleshow/39016055.cms
6 . The judgement is available at http://indiankanoon.org/doc/1735815/
7 . Age of activism, 15 August 1985, India Today, available at http://indiatoday.intoday.in/story/justice-p.n.-bhagwatis-appointment-as-chief-justice-of-india-widely-welcomed/1/354365.html