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