National Judicial Appointments Commission Amendment is very badly drafted , and needs to be amended in toto ; Ram Jetmalani

Leading Jurist and former Law Minister of India had opined that National Judicial Appointments Commission, a part of Constitution’s Article 124A needs to be amended in toto. In his weekly column in Sunday-guardian  he wrote

“It is an elementary principle that a litigant cannot be allowed to have a voice in the appointment of a judge from whom he is seeking justice. On a larger scale, it means that the litigants in general must have no effective hand or participation in the appointment of judges. It is a fact that apart from litigation between private persons, the executive, namely, the government and its extensive blundering bureaucracy are the ones against whom the wronged citizen seeks redress from the courts. Logically, should this wronged citizen be expected to have confidence in judges who owe their appointment wholly or partly to the executive? Once upon a time, when our rulers were honest, the system as originally expounded in our Constitution, which gave complete power of appointment to the executive, subject only to consultation with the judiciary, did work satisfactory. Unfortunately, national character has declined, the decline being deeper and faster amongst ranks of our executive.”  

Regarding the composition of National Judicial Appointment Commission he wrote;

“I believe that the requirement of a jurist in the commission is absolutely essential. Our country badly needs them, and five years' judgeship in the high court or ten years' practice at the bar is not enough to make one a distinguished jurist.

Lastly, the country's progress and prosperity depend upon the welfare of the workers, the pillars of our economy. Without them, no economic growth is possible, and their need for justice is both acute and obligatory. Some recognised leaders of this sector of our citizenry will add to the social and public acceptance of the National Judicial Commission.

Now let us see what has been accomplished by the new Constitution 121st Amendment Bill 2014, which has since been enacted by Parliament. This Bill, unlike the earlier one, which failed to pass, has by Article 124A established the National Judicial Commission, as well as its constitution and functions. The defects of this new provision, however, are as serious as those of the previous one rejected by Parliament, namely:

(i) The Chief Justice of India and two other senior judges of the Supreme Court are three out of the total six members. This is unexceptionable and right.

(ii) The objection is to the fourth member, the Union Law Minister in charge of law and justice. This member should have been an independent and eminent member of the bar, and certainly not the minister of the government. If any minister, including the Prime Minister, is to become a member, his presence should be neutralised by Leader of the Opposition. The object of this provision, therefore, is to give the executive a significant edge in the selection of judges. This offends the very first principle that the litigant must have no voice at all in the appointment process of the judge before whom he seeks justice.

(iii) Now the remaining two members of this commission are described as two eminent persons to be nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition. This provision does not ensure the presence of an eminent and independent leader of the bar, nor does it provide for a distinguished jurist or academician. I have expressed earlier that a person eminent in the social sciences should normally mean a person enjoying the confidence of the workers of India. And besides, eminent persons in our present democratic ethos are normally interpreted to be those enjoying political power.

(iv) One out of the two eminent persons is to be nominated from one of the six classes of the citizens of India — Scheduled Castes, Scheduled Tribes, OBCs, minorities or women. Selection of one member from these six large groups will certainly not be easy and can cause dissention and strife in nomination, or even an impasse.

To the best of my knowledge, this Bill was passed in Parliament almost unanimously. The previous government had initiated a very mischievous measure in the Constitution 120th Amendment Bill of 2013, introduced in the Rajya Sabha on 24 August 2013 by my friend Kapil Sibal, then Law Minister. He had somehow, through his personal magic, persuaded the Leader of the Opposition, Arun Jaitley to accept that Bill as good. I was the lone Rajya Sabha member who stood up to oppose the Bill, because I saw its mischief. And that was that the constitutional amendment only created a judicial appointment commission, but its structure, functions and powers were to be decided by ordinary Parliamentary Legislation, to be passed by simple majority. The Parliamentary Legislation could well provide that the Commission will consist of only one member, the Law Minister alone.

As a result of my serious opposition and explanation of the nature of the fraud under perpetration, the Bill could not be passed in that form, because substantially the entire Opposition walked out in protest and the requisite majority for a constitutional amendment was not available to the ruling party. This virtually saved the nation from reverting to the regime of executive supremacy in the matter of judicial appointment.

The only reform following the 121st amendment and the National Judicial Appointments Commission Act, 2014 is that the constitution of the National Judicial Appointments Commission is now made a part of constitutional Article 124A, and no longer left to the mercy of ordinary parliamentary legislation. However, this Act, fortunately, has not yet come into force. Last week, the Law Department of the University of Bombay organised a full day discussion on the Act, attended by eminent law professors, practicing lawyers, judges and students, and it found no approval from anywhere. For lack of adequate space, I can only point out its main defect, in the vain hope that this Act will not be brought into force until replaced by another or amended in toto. And that is that the Act is very badly drafted, almost justifying the well-known ditty:

"I am the draftsman and I write the country's laws

And of half the litigation I am the cause."