By Tarunkumar G. Singhal, Raman Jokhakar, Chartered Accountants
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One of the extraordinary features of the Indian system is the number of things, both big and small, that it eventually manages to get right. A recent example of the former was the decision by the Cabinet to install a Judicial Appointments Commission (JAC). Questions then arose about its status and the government has now decided to make it a constitutional body. Whenever this is done – and one must hope that it is done very soon – it will mark a fundamental change in the way India’s judiciary is run.
Article 124 of the Constitution says that the President of India, in consultation with the Chief Justice of the Supreme Court, would appoint the judges. The Supreme Court took this to mean that neither the executive nor the legislature could have a say in the appointment and transfers of judges. The convention in respect of this is laid down very firmly indeed in the S. P. Gupta case in 1981, when memories of what the government had done to the judiciary during the Emergency were still very fresh and strong. The government has been grumbling since then. In 1993, the Supreme Court instituted a collegium system, which apparently diluted the power of the Chief Justice but did not abridge the judiciary’s right to appoint its own. In 1998, then President K. R. Narayanan made a Presidential reference questioning the collegium system. While this resulted in more guidelines for appointments and transfers, the core power remained with the judiciary. Since then, the executive has tried hard to put a different appointment system in place. The JAC is the final result.
The JAC will be headed by the Chief Justice of India. The other members are the law minister, two of the senior-most judges of the Supreme Court, the law secretary and – in an idea that has been borrowed from the United Kingdom – two “eminent” persons, to be chosen by the prime minister, the Chief Justice of India and leaders of the Opposition in the Lok Sabha and the Rajya Sabha. It would seem that in the ordinary course of things, there are now enough checks and balances. The criteria for becoming a member of the JAC should now be spelt out clearly. One niggling question remains, however: will this system abridge the independence of the judiciary in some unforeseen way? By its very nature, the unforeseen cannot be anticipated. However, it is possible that – just as it happens in any selection done by committees – there will still be some room for bargaining, which leads to the best judges not being appointed. Such outcomes could be minimized by ensuring open hearings, which limit the scope of such backroom deals. In any case, a simple application of a brute majority decision rule does not always lead to the best results; at the very least, such voting should also be embedded in an open and transparent exchange of reasons.
