EX­EC­U­TIVE RE­VENGE

The law min­is­ter seeks to do away with the col­legium sys­tem of ap­point­ing judges. The le­gal fra­ter­nity is en­raged.

India Today - - NATION - By Da­mayanti Datta

Qui­etly, while food se­cu­rity and land ac­qui­si­tion mo­nop­o­lised eye­balls and mindspace of the na­tion, two in­ter­twined bills moved to the floor of Par­lia­ment on Septem­ber 5. Dense with legalese and long ram­bling sen­tences, they went over the heads of the aam aadmi. But for those who sense a stake in the fu­ture, the two bills stood on the edge of his­tory.

The Con­sti­tu­tion ( One Hun­dred And Twen­ti­eth Amend­ment) Bill, 2013, and the Ju­di­cial Ap­point­ments Com­mis­sion Bill, 2013, pro­posed to cre­ate new rules for ap­point­ing higher judges. “To have best judges for a bet­ter fu­ture,” said Union Law Min­is­ter Kapil Sibal in Ra­jya Sabha on Septem­ber 5. What he did not say was, if im­ple­mented, the bills would give the govern­ment un­bri­dled power over the ju­di­ciary. “Both the bills are evil and will dis­turb the ba­sic fea­ture of the Con­sti­tu­tion,” protested em­i­nent ju­rist Ram Jeth­malani, the lone dis­sent­ing MP. That un­leashed a flurry of in­vec­tive against the ju­di­ciary from all sides— some in­formed, some an­gry and some just plain emo­tional.

How did the ju­di­ciary re­act? “As the CJI, I am not go­ing into the con­tents of the Bill and how it was passed.” On Septem­ber 14, when Chief Jus­tice of In­dia P. Satha­si­vam re­frained from pub­lic crit­i­cism of Par­lia­ment at a Bar As­so­ci­a­tion sem­i­nar in Delhi, he ac­tu­ally said more than he in­tended. As Bar mem­bers raised ques­tions on the way bills were rushed through, with­out ever en­gag­ing the le­gal fra­ter­nity, the CJI of­fered a cryptic warn­ing: “There is lit­tle hope for Rule of Law.”

“Call it chan­nelling of ir­ri­ta­tion and anger of the po­lit­i­cal class at an ac­tivist court, es­pe­cially since the 2G case,” says po­lit­i­cal psy­chol­o­gist Ashis Nandy. The ac­ri­mo­nious stand- off be­tween CJI Satha­si­vam and his im­me­di­ate pre­de­ces­sor Al­ta­mas Kabir in July also did no good to the image of the ju­di­ciary, he adds. There have also been sig­nif­i­cant clashes be­tween the Supreme Court and the govern­ment in the re­cent past over ju­di­cial ap­point­ments— or the col­legium sys­tem.

The col­legium sys­tem evolved slowly, in the wake of po­lit­i­cal and judi- cial mile­stones like the Emer­gency of 1975— when judges were brow­beaten into sub­mis­sion by the ex­ec­u­tive. Its cur­rent form— where five top judges of the Supreme Court, headed by the CJI, select judges to higher courts— came out of a land­mark nine- judge Supreme Court verdict of 1993. The govern­ment has the op­tion of re­turn­ing the col­legium’s rec­om­men­da­tion once, but be­yond that it is bound to ac­cept the col­legium’s dik­tat.

The bills tar­get this sys­tem: First, by seek­ing to re­place the col­legium with a Ju­di­cial Ap­point­ments Commi-

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