July 16, 2003

REFORM WHERE THE AILMENTS LIE
PROPOSED JUDICIAL COMMISSION WILL NOT DO

New Delhi : The Union Government is trying hard to push a constitutional amendment bill under the pretext of reforming the judiciary of the country. Establishment of a National Judicial Commission has been proposed to appoint judges of the Supreme Court and High Courts, to handle the transfer of the high court judges, and to inquire into any charges of misconduct by judges. But it is unfortunate that the proposed Constitutional (Ninety Eighth Amendment ) Bill, 2003 does not envisage tranparancy, independent selection process, or even an independent commission. A reform is much needed in judicial administration that is considered as thoroughly corrupt, but it is being left untouched.

This proposed bill for establishing a National Judicial Commission was tabled in the Lok Sabha during the budget session this year on behalf of the BJP-led NDA government at the centre. It was claimed by the government that the Bill is being introduced to reform the judiciary as per the recommendation of the National Commission to Review the Working of the Constitution of India. But the provisions in the Bill itself reveals the ulterior motifs of the government that included its wish to interfere in the matters of judiciary.

It is just opposite to the recommendation of the National Commission to Review the Working of the Constitution of India. In a consultation paper it has categorically stated , “ The NJC's ( National Judicial Commission) composition should not be such as to affect directly or indirectly the independence of the Judiciary and the power of judicial review both of which have been held to be the basic feature of the Constituion.” Keeping this in view it had recommended that the NJC should be comprised of the Chief Justice of India, two Supreme Court judges, the Law Minister and the President's nominee in consultation with the Chief Justice of India.

Even this recommendation includes the Union Law Minister, a representative of the executive, and thus gives the executive a 20 percent chance of interfering with the process of appointment, transfer, and enquiry into the allegations of misconduct of judges. However , the Centre was not satisfied with that and made a provision that there should be one more representative of the Prime Minister in the NJC. Therefore, the proposed Bill envisaged that the President's nominee shall be appointed in consultation with the Prime Minister. It this Bill is passed, there will have two representative of the executive in the five-member Judicial Commission.

Let us examine how this proposal could prove a bane for the judiciary. We have already seen during more than four decades from our independence until 1993, how the Article 124 of the Constitution of India relating to appointment of judges had been implemented. Under this, there is a provision that the President of India shall appoint judges after “consultation” with the Chief Justice of India. We actually do not know how far the opinions of the Chief Justice of India were respected by the executive, mainly because there was no transparency.

However, it may be argued that there was some trouble, and therefore, a nine-judge Bench of the Supreme court had to rule that if there was a conflict among the constitutional functionaries , the opinion of the Chief Justice of India should be given primacy and that no appointment could be made unless it was in conformity with the opinion of the Chief Justice. In this way the Supreme Court had extended the meaning of “consultation” and the opinion of the Chief Justice of India became a binding for the Executive.

The Chief Justice of India used to consult two other senior judges before giving his opinion to the President. The Bench gave a legal sanction to the practice and passed an order that Chief Justice of India must consult the two-senior most judges. Thus it became a three-member committee of collegium. In a later judgement in 1998, the Supreme Court expanded this to five members. In the matter of appointments and transfers of judges, the judicial then became “almost independent” from the executive, except in the matters of information regarding the antecedents, and other necessary background informations of individuals, which is provided by the Ministry of Law and the Ministry of Home.

The government is trying to revert to the situation as it was before 1993, when the Executive had the last word in the matter of appointment of judges. That is why, it wants two of its representative in the five member commission. If the government wants to do this for judicial reform, then it is potentially more dangerous than the present system which includes only judges in the collegium.

Can this proposed National Judicial Commission reform the judiciary and the judicial administration ? In no way. Because it does not try to reform the ailments where they lie. We can give example of the judicial administration of our country. It is an open secret that the judicial administration is thoroughly corrupt with very few exceptions ( if it really exists somewhere). It has become virtually impossible to get any kind of paper from judicial administration without bribing the staff or officers there. One even finds himself in difficulty if he wants to make his presence in the courts without giving bribe. Bribe money can get one's most of the works done smoothly in the court campuses. It is here, people want reform. People are terrorised, and do not want to open their mouth against this form of corruption. Can any one reform this !

There are other things in judiciary where reform is needed. The high cost of justice is one of them. Many of us are unable to bear the costs and thus condemned to suffer injustice in the hands of various self-interests. Some of us can bear the costs, but then there is delay in delivery of justice. And the last , but not the least, is the poor quality of justice, where one hopes reforms. (EOM)