Battleground Supreme Court: Jurists challenge Modi’s judicial accountability law

“ The directive principle of State policy in Article 50 mandates separation of judiciary from the executive to maintain its independence, as essential for its function as the watchdog under the Constitution. However, like every organ of the State and every public functionary in a democracy the judiciary as an institution and every judge as a public functionary is accountable to the political sovereign—the People. The only difference is in the form or nature of the mechanism needed to enforce their accountability. In short, judicial accountability is a facet of the independence of the judiciary; and the mechanism to enforce judicial accountability must also preserve the independence of the judiciary,” the Late Justice J.S.Verma had cautioned us a few years ago in a lecture on judicial accountability. The core of Justice Verma’s argument was the mechanism to enforce judicial accountability must, first and foremost, preserve the independence of judiciary. Justice Verma’s wisdom is being turned on its head today as the NDA government has pushed through, with undue haste, a new mechanism to appoint judges which could erode judicial independence itself. Many top jurists feel the new law on appointment of judges in the higher judiciary, passed by Parliament recently, will compromise the autonomy of the judiciary and give the political class a handle to appoint judges of their choice. [caption id=“attachment_1679757” align=“alignleft” width=“380”] Supreme Court. Agencies.[/caption] Previously a five member collegium of Supreme Court judges recommended appointments to the higher judiciary. The government had no power to reject the collegium’s recommendations. Under the new law, a committee of six members will decide higher judiciary appointments of which only three will be SC judges. Of the other three members, one will be the Law Minister and the other two would be eminent persons chosen collectively by the Chief Justice of India, Prime Minister and a leader of the opposition. The main danger is the Law Minister with the support of another member can veto a recommendation of the Committee. So the Supreme Court judges’s powers to appoint have been curtailed and the executive’s power has been enhanced. This does not augur well for the higher judiciary. If you do a referendum among the people and ask them who do they trust more when it comes to appointment of judges, the Supreme Court or the political class, the answer will be overwhelmingly in favour of the Supreme Court. This is the crux of the whole debate. There may be shortcomings in the Supreme Court collegium system of appointing judges. But it would be far superior to politicians appointing judges. The NDA government cleverly exploited the ongoing debate on removing the shortcomings of the collegiums system and turned the tables on the Supreme Court by passing a new law which may threaten judicial independence itself. The Modi government used psychological warfare from day one by challenging Gopal Subramanian’s appointment on flimsy grounds. Gopal was specially invited by the Chief Justice of India to become a judge of the Supreme Court. Later the NDA got support from unexpected quarters as some ex-Supreme Court judges, like Markenday Katju, started pointing out flaws in the collegium system. Did Katju imply that the political class will do a better job of appointing judges of high integrity? The absurdity of this proposition is self-evident. Highly respected jurist Fali S Nariman has even initiated a move to challenge the constitutional validity of the new law in the Supreme Court. Nariman, who was consulted by Law Minister Ravi Shankar Prasad on the Bill, faulted the new law on several counts. He is not happy with the composition of the proposed Commission which will have only three judges out of the total of six members. The fact that it gives veto power to any of the two members to reject a recommendation made by a majority increases the politician’s discretion. Nariman had been saying the collegium system needed to be reformed by making it more transparent but he has steadfastly maintained that the majority of the members on the Commission must be SC judges. The NDA has kept only 50% of the members as SC judges, thus diluting their powers. Nariman has also expressed his concern over the bills’ provision which said two eminent persons in commission will be selected by a group of the Prime Minister, the leader of second largest opposition party and the Chief Justice of India. “Eminent persons are chosen in political sphere… I am sorry that this (bills) should have been pushed through in this fashion,” Nariman said. Theoretically, an “eminent person” could have sharp political/ideological angularities. Besides, no procedure has been laid down as to how two eminent members will be chosen collectively by the Prime Minister, Chief Justice of India and leader of the largest opposition party. Is it by unanimity or simply by consensus? This is yet not clear. Quite shockingly Fali Nariman has also publicly disclosed to a TV channel that when the Law Minister Ravi Shankar Prasad came to consult him, some of the provisions in the final bill were not even discussed by the minister. It seems the Law Minister was not aware of them at that stage. They might have been pushed through at the last minute. No wonder, the Bill has been challenged in the Supreme Court. Given the overall confrontational atmosphere the NDA government has created, it is anybody’s guess what the SC might do!