Does the BJP Know What it is Doing?

The Judicial appointments bill is only the second bill in the last half-century to have been passed by both houses of Parliament in little more than a single working day. The other was Rajiv Gandhi’s anti defection bill of 1985. Prime Minister Narendra Modi hailed its passage from the ramparts of Red Fort on Independence day as the start of a new page in cooperation within Parliament on key national issues. The fact that this was not an ordinary bill but an amendment to the Constitution which required a two-thirds majority makes the achievement even greater. But there is a crucial difference between the two bills. The anti-defection bill, which became the 52nd amendment, strengthened Indian democracy by stabilizing political parties and strengthening the executive. The Judicial appointments Act will weaken Indian democracy – quite possibly fatally.

This may not be Mr Modi’s intention. But it will be its effect. The reason is that constitutional provisions do not work in a vacuum. A constitution only provides the frame within which political forces work. The precise form of democracy that emerges is a product of this interaction. In India this has been very far removed from the intentions of the constitution -makers. In the current amendment this is a foregone conclusion.

No one can quarrel with the avowed goal of the act, which is to ensure that corruption and nepotism do not creep into the appointment judges of the high courts and the Supreme Court as they have in a few , well publicized cases in the recent past. But doing away with the collegial system, instead of correcting its flaws is a cure worse than the disease. That is what the new act will do.

A great deal has already been written by experts about the flaws in the bill and need not be repeated here. Suffice it to say that the three judge-three outsider composition of the Commission and the blanket , open-ended power to regulate the conduct of the courts that the Act gives to the appointments Board is practically tailor-made to generate conflict within the board, for it will pit three judges including the CJI, against three ‘outsiders’ who will include the powerful union law minister. To make matters worse, on the crucial appointment of the chief justice himself, the judges will be reduced to a minority because the next judge in seniority, who is bound to be a member of the Board, will not be allowed to participate in the meeting.

The sole power left with the judges will be the power of veto. But this power can be used just as easily by the government if the law minister has even one of the outside members on its side. The independence of the judiciary will therefore finally depend upon the quality and integrity of the two ‘eminent’ persons chosen to belong to it. It is here that the flaws in the bill are most apparent. For it does not say a single word about who will choose the eminent persons, from what professions and on what criteria. By default, therefore, the government will have the full freedom to choose.

To further subordinate the judiciary to the executive the Act does not stop even there. For when the Board sends a recommendation to the President of India , it is still open to the latter to send it back for ‘reconsideration’. The ‘President of India’ of course the Home and Law ministries and the Prime minister’s office, possibly rubber-stamped by the Cabinet. So the Act provides the executive branch of government with not one, not two, not three but four choke-points at which it can impose its will upon the judiciary.

First, it can ensure with the utmost of ease that it has a permanent parity with the judiciary on the Board. Second the Act puts the judges on the Board in a permanent minority in the choice of the next CJI. Third, with just one of the two eminent persons on its side it can veto any nomination proposed by the CJI and his colleagues that is not to its liking. Fourth, if it cannot even muster one supporter on the Board, it can get the appointment reconsidered by the President. Since resubmission then requires unanimity in the Board, and the law minister is himself a member of the Board, ‘reconsideration’ will become synonymous with ‘rejection’.

But will the government even have to go as far as ‘reconsideration?’ The answer, alas is no. For once every member of the board, from the future Chief Justice of India to its two ‘eminent’ members realizes that there will be a price to pay for courting the government’s displeasure they will think twice before doing so.

The Modi government has already demonstrated a certain intolerance for opposition. Within a month of coming to power it removed the name of Gopal Subramaniam, one of India’s most respected lawyers, from a panel of four judges cleared by the CJI for elevation to the Supreme court. Subramaniam was the court appointed lawyer for the plaintiffs in the Sohrabuddin encounter killing case that had implicated Amit Shah.

The Judicial appointments bill is now on the statute books, but it can be amended. All Mr. Modi has to do is heed the Law Commission , which advised the Janata government in 1980 that if it did want to set up an appointments board three of its five members had to be ex-CJIs or judges of the Supreme court.