JAC: Constitutional Norm or Muzzling Freedom?

By Hrishikesh Utpat

“Government” rests on the three legs of the executive, the judiciary, and the legislature. Several theories have been propounded to define the relations between these three, one of the most significant of which is Montesquieu’s “Trias Political” principle. This model, first developed in ancient Greece, separates the functioning of these three branches such as the powers and responsibilities of any one does not conflict with those of the remaining two.

Existing Models

Several function models have been developed to instantiate this working principle. For instance, in the United States, the US President is the chief executive, elected indirectly via an electoral college which is elected by the citizens. The judiciary consists of federal and state courts, created along federal principles. The legislature consists of two houses – the House of Representatives and the Senate.

In India, the design of power is according to the parliamentary system. The Indian President is the Head of State, and has executive, legislative and judicial powers resting with him/her. As per Article 79 of the Constitution of India, the legislature consists of both houses of Parliament – the Lok Sabha and Rajya Sabha, as well as the President. As per Article 52, the executive power of the State rests with the President. The Prime Minister is the Head of Government, and a member of both the executive and the legislature. As per Article 75, the Prime Minister and the Council of Ministers are collectively responsible to the Lok Sabha.

This leaves the third wing of the government – the judiciary. The Indian judiciary is a single, integrated and independent wing; it consists of District and Subordinate courts, High courts (HC) in states and the Supreme Court of India (SC). The Supreme Courts consists of the Chief Justice of India (CJI) and 30 other Justices. The issue of appointment of these judges is a matter of great intrigue.

Appointment of the Judiciary

Article 124(2) of the Constitution says that every judge of the SC shall be appointed by the President after consultation with such of the Judges of the SC as the President may deem necessary. This process of consultation has been codified by the SC judgments in the Three Judges Cases (1981, 1993 and 1998). Over the course of these three judgments, a collegium system of appointment was created, wherein a collegium of the CJI and 4 senior-most judges would recommend appointments to the President (said recommendations being binding). It was further noted that the recommendation has to be passed by a concurrence of the majority of judges – at most one judge can dissent to a particular recommendation for it to pass. A similar process is applicable to the appointment of High Court judges.

The collegium system has been controversial, since it does not find mention in the Constitution. This irregular practice of appointing a constitutional body by an extra-constitutional mechanism has been seen by many as indicative of a judiciary with over-reaching powers, which is detrimental to the established fine balance of power.

The Judicial Appointment Commission

On the 5^th of September, the Rajya Sabha passed the 120^th Constitutional Amendment Bill. This creates a Judicial Appointment Commission (JAC) for appointing judges to the SC and HC. This bill amends Articles 124(2) and 217(1) of the Constitution to grant constitutional status to the JAC.

The JAC is to consist of the CJI, two SC judges, the Union Law Minister, “two eminent persons” and the Justice Secretary. The nomination of the eminent persons mentioned is to be done by a panel consisting of the Prime Minister, the leader of Opposition in both houses of Parliament and the Chief Justice of India.

The establishment of the JAC has been supported by prominent legal experts such as Justice (retd.) V. G. Palshikar (ex-Chief Justice, Bombay HC) and Bar. Vitthalrao Gadgil. It is argued that the current collegium system is not in strict accordance with the Constitution, and that a partisan judiciary was a reality in 1993 (when the judgment in the Second Judges Case was passed); this is no longer the case.

Despite these assurances, the JAC has come under intense criticism. The Chairman of the Bar Council of India has said that this will curtail the independence of the judiciary. The Chief Justice of India, P. Sathyasivam has opposed any changes to the collegium system. The chief objections to the JAC are as follows:

1. It will threaten the position of the Chief Justice of India.
2. It will lead to interference in the independence of the judiciary. The JAC consists of a majority of non-judges.

In particular, it is the second objection which is of particular significance. The Indian polity is currently in a state where both the executive and legislature are by-and-large ineffective, and the Judiciary is seeing a more pro-active role vis-à-vis judicial activism and Public Interest Litigations. The Parliament has shown remarkable capacity to unite across party lines, particular in light of judgments that hurt their interest; the recent bill to overturn the SC’s judgment regarding the Representation of People Act, 1951, is an excellent case in point.

In such a situation, it is necessary to examine the efficacy of the JAC in maintaining the balance of power. The judiciary is one of the last remaining institutions in India whose conduct has been largely blameless. By giving the Parliament greater control over the judiciary, are we not putting at risk the functioning of this fine institution, and by extension the Republic itself?

Perhaps remembering the ex-PM Mrs. Indira Gandhi’s vision of a “committed judiciary” will help cement the case.

Has completed his BE (Computer Science) from MIT College, Pune, and his currently pursuing a masters degree in Economics. He particularly enjoys social sciences, and has chosen to study Economics because it provides the “perfect blend of Science and Social Sciences”. Currently preparing for the UPSC Civil Services Exam, Hrishikesh hopes to serve the country by joining the bureaucracy – having cleared the Preliminary exams for the Civil Services in 2013, he will be appearing for the Mains exams in December. His passions include reading, writing, travelling, mountaineering and teaching. Currently affiliated with the prestigious Chanakya Mandal Pariwar organization in Pune, Hrishikesh teaches a wide range of subjects such as History, International Relations, Economics, Mathematics and Statistics.