The Executive Vs the Judiciary: The Ghost of Rex Lex

Anirudh T.

The Executive Vs the Judiciary: The Ghost of Rex Lex with special focus on the Judicial Accountability Commission (JAC) Bill 2013, and the 120th Constitutional Amendment Bill (CAB)

Before Aristotle, the belief was Rex Lex or ‘The King is Law’. But it was the great Aristotle of Stagira who proposed Lex Rex or ‘The Law is King’. This was later popularized by the British jurist, Albert Venn Dicey as ‘The Rule of Law’(RoL). According to Dicey, RoL is one of the fundamental principles of any civilized legal system. He attributed the following three meanings to it: (i) Supremacy of Law, (ii) Equality before Law and (iii) Judicial Independence.

The founding fathers of the Indian Constitution ensured that this principle of Rule of Law was enshrined in the document. Consequently, this was included in Article 14 as the ‘Right to Equality’ which includes: (i) Article 14 (a) – Equality before Law and (ii) Article 14 (b) – Equal protection of the laws. The independence of Judiciary under Article 50, Part IV, Directive Principles of State Policy. Our Constitution mandates an integrated judiciary with the Supreme Court (SC) at the apex court under which High Courts (HC) and subordinate courts function. The Supreme Court has been vested with the responsibility of being the guardian of the Indian Constitution and a faithful custodian of the fundamental rights. This was also suggested by Dicey, who had said that rights would be secured more adequately if they were enforceable in the courts of law.

The great French luminary Montesquieu elucidated the doctrine of separation of powers viz. The Legislature, the Executive and the Judiciary, with appropriate checks and balances. The interference of the Executive in the functions of the Judiciary has repeatedly happened in India. This article especially focuses on the contentious CAB and JAC bills, 2013. The independence of Judiciary, recognized as one of the basic features of the Constitution in the several landmark judgments of the Supreme Court of India, must be respected and any attempt to abrogate it by any of the State institutions should draw attention of not only the legal community but also each and every citizen of this country as the repercussions of such an action would touch every life aspiring and hoping to get justice. A history of such interferences by the Executive is also discussed along with the evolution of the present day “Collegium System” of judicial appointments accompanied by the reasons for its criticism. Finally, the article touches upon the pièce de résistance of the theme, the Executive’s malicious attempt to muzzle the Judiciary’s enthusiasm with the Machiavellian JAC Bill 2013. The threat of the return of Rex Lex looms in the form of the controversial JAC Bill 2013 and the CAB 2013.

Brief History

The independence of the Judiciary has been recognized as one of the basic features of the Constitution (Kesavananda Bharati Vs State of Kerala 1973). This principle of independence of Judiciary also compliments the constitutional principle of the separation of powers.

The first instance of interference by the Executive was the bypassing of senior judges (Justices Hegde, Shelat and Grover) to the post of the Chief Justice of the SC in April 1973, instead, A.N. Ray was appointed superseding the above three senior judges. In 1975, as a result, the SC’s decision in Indira Gandhi Vs Raj Narain 1975, upheld the verdict of Allahabad High Court declaring Prime Minister Indira Gandhi’s election ultra vires to the election procedures. Subsequently, the Emergency was declared on 25th June, 1975 unilaterally. In 1976, HC judges were transferred without providing valid reasons by the Government.

The 42nd Amendment to the Constitution was introduced in 1976, It introduced Articles 323A and 323-B, which was an attempt to curb judicial independence. Article 323-A, empowered the Parliament and Article 323-B, the respective State Legislatures, to create tribunals which could adjudicate upon disputes, which were originally under the jurisdiction of the SC and the HCs. There was also a provision made to transfer pending cases from HC to these special tribunals. These tribunals were also empowered with judicial review, giving rise to a parallel judiciary remote controlled by the Executive itself.This would have set a dangerous precedent and an independent judiciary would have just been a farce in such a system where the balance of power with delicate checks and balances institutionalized by our Constitution would have been disturbed with direct interference in the independent functioning of the judiciary.Without an independent judiciary, a vibrant democracy is impossible to imagine and it would ultimately lead to concentration of power following the trail of autocracy by institutionalizing a “surrogate judiciary” put in place by the executive to compete and subdue the original institutions of judiciary enshrined in the Constitution.

The Judiciary has upheld its credibility, respecting the Constitution by exercising constraint on its jurisdiction. In the Rustom Cavasjee Cooper Vs Union of India 1970, the SC held that the court is only required to adjudicate the legality of the policy, its coherence with the Constitution and not its contents, merits or demerits. In the Delhi Science Forum and Others Vs Union of India 1996, the Supreme Court held while rejecting a claim against opening up of the telecom sector, reiterated that the policy efficacy must be debated in the Parliament alone and not in the courts.

Evolution of The Collegium

In S.P.Gupta Vs Union of India 1981, the SC opened the weir to executive interference in the appointment of judges by making the executive the ultimate authority in the appointment of judges of SC and the HCs.It could consult the CJI but the executive was not bound to act in accordance with the CJI’s recommendation completely tilting the pivot of power towards the executive. This was subsequently overruled by the SC in Advocates- on- Record Association Vs Union of India 1993, a nine judge’s bench decision restored the balance in favour of the Judiciary by introducing the ‘Collegium System’. The Collegium is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior most judges of the SC and three senior most judges of the HC.

According to the Constitution, Article 124 deals with the appointment of SC judges. It says the appointment should be made by the President after consultation with such judges of the HCs and SC as the President may deem necessary. The Chief Justice of India (CJI) is to be consulted in all appointments. Article 217 deals with the appointment of HC judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the HC concerned too should be consulted. Article 222 deals with the transfer of judges.Article 124, 217 and 222 all are very significant in constitutionalizing the independence of the judiciary. A constitutional backing would be absolutely necessary to protect and safeguard the offices of the judiciary from executive interference for time-bound delivery of justice to common man.The executive encroachment would have been imminent in the absence of such a constitutional provision providing for judicial independence, again clearly mentioned under Article 50, Part 4, Directive Principles of State Policy emphasizing the importance of maintaining the delicate balance of powers with checks and balances, the most important prerequisites for a vibrant democracy. In the presence of these constitutional safeguards for judicial independence itself, there have been repeated attempts to penetrate the judiciary, we just cannot imagine the counterfactual!

In 1998, there was a Presidential Reference to SC as to what the term ‘consultation’ between the President and the CJI meant in the Articles 124, 217 and 222 of the Constitution. The term ‘consultation’ was defined very elaborately that it is not discretionary but it involves a series of internal peer consultations in the judiciary in writing and such a recommendation should be in accordance with such internal consultations. The collegium system gradually took its current shape and finally introduced for the appointment of judges.It is this watershed moment of giving a concrete definition to the term “consultation” by the SC that leads to the gradual development of the current collegium system of appointments.It doesn’t allow to vest the power of appointments in a single office of the Chief Justice of India, eliminating discretion and infusing a more democratic flavour to the appointment of judges by including other senior SC judges in the loop of decision-making.This definition simply implies that this recommendation to the executive is not just from the CJI but from the judiciary as a single organic institution.

However, the Collegium system has been criticised as an opaque and a non-accountable system. Justice Ruma Pal, a former SC judge, calls it as “one of the best-kept secrets in the country” (Shah, 2012). The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism is another lacuna in the system. To eliminate non-transparency, CAB was proposed.

CAB 2013 – a coup de grâce for the Indian Judiciary?

The proposed JAC Bill, 2013 (pending before the Parliamentary Standing Committee) and the CAB 2013 (already passed by Rajya Sabha) aim to constitute JAC instead of the incumbent Collegium in the appointment and transfers of SC and HC judges. According to the Bill, the JAC will consist of (i) CJI, (ii) two senior most judges of the SC, (iii) Union Minister for Law and Justice, (iv) two eminent jurists to be nominated by the Prime Minister, CJI and the Leader of Opposition and (v) the Secretary to the Government of India in the Department of Law and Justice.

The alternative to the Collegium was a National Judicial Commission (NJC). The Constitution (98th Amendment) introduced in the Lok Sabha by the NDA Government in 2003. It provided for the constitution of an NJC to be chaired by the Chief Justice of India and with two of the senior-most judges of the Supreme Court as its prime members representing the Judiciary. The non-judicial members of the NJC would not be endowed with any voting rights regarding the appointments and transfer of judges. But, they would play an important role in conveying its views, making recommendations and providing fruitful suggestions to the Judiciary in its process of appointments and transfers. These recommendations for the non-judicial side would not be binding on the Judiciary.

The ‘raison d’être’ of the non-judicial side is that it would help in establishing a double feedback channel with the Executive and with the highest echelons of the civil society, taking all the stakeholders on board and also keeping the checks and balances on the State institutions intact. The NJC ultimately, would decide the appointment and transfer of judges and also probe cases of misconduct by judges, including those of the highest judiciary.

The appointments and transfers of judges, their qualifications and antecedents would be published and updated regularly on the NJC’s website. A dedicated, digitized All India Judicial Registry would be created consisting of all the judges’ records, previous judgments, qualifications, experience at the Centre and in the States The NJC would also be armed with wings connected to the proposed Lokpal.

Separate judicial tribunals and fast-track judicial courts would be established to deal with the cases that would arise involving the alleged corruption in the offices of the Judiciary. Such a reform would safeguard the independence of Judiciary and at the same time introduce transparency, accountability into its system and further instil the trust and faith in its ardent believers.

Conclusion

This JAC Bill 2013 and the CAB 2013 pose a serious threat to the independence of Judiciary and the other democratic institutions in our country. There may be lacunae in the Collegium system, but the Executive’s interference in the Judiciary’s affairs in the form of JAC cannot be the solution. The judicial appointment is the sole prerogative of the judiciary.

The enthusiasm to reform the Judiciary by the Executive must be channelled in a direction in which alternatives can be sought without abrogating the basic structure of the Constitution. We should remember the old saying that “a bad remedy can be worse than the disease itself”.

Bibliography and References

Divan, A. (2013, June 14). A trojan horse at the judiciary’s door. Hindu. Retrieved on 25 February 2015 from http://www.thehindu.com/opinion/lead/a-trojan-horse-at-the-judiciarys-door/article4811353.ece

PRS Legislative Research. Last viewed on 24 June 2014 at http://www.prsindia.org.

PTI. (2013, August 29). Bill to scrap collegium system of appointing judges. Hindu. Retrieved on 26 February 2015 from http://www.thehindu.com/news/national/bill-to-scrap-collegium-system-of-appointing-judges/article5071469.ece

Shah, A. P. (2012, January 26). Who should judge the judges? Hindu. Retrieved on 22 January 2015 from http://www.thehindu.com/opinion/op-ed/who-should-judge-the-judges/article2832090.ece

(A graduate engineer, university hockey player and an Indian civil service aspirant, the author is reading for Master of Public Policy (2016) at the National Law School.)

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