8/27/2014 Two bills that threaten democracy

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ETHICS & POWER
RAM JETHMALANI
www.sunday-guardian.com/profile/ram-
jethmalani
Ram Jethmalani is a senior politician and eminent
lawyer.
Two bills that threaten democracy
The effect of the two Bills is to restore the doctrine of executive supremacy in high judicial
appointments.
wo important bills concerning the judiciary came before the Rajya Sabha on 5 September
the Constitution (One Hundred And Twentieth Amendment) Bill, 2013, (LX of 2013) and
the Judicial Appointments Commission Bill, 2013 (LXI of 2013).
The two Bills together, as well as individually, are a serious threat to our democratic system
and the independence of the judiciary, which, fortunately, are basic features of our
Constitution. Experience shows that it is only when the executive gets sunk in corruption
and governance bankruptcy, that it resorts to stifling other branches of government
unconstitutionally through executive supremacy. The judiciary becomes a red rag before the
executive, and judges who are a thorn in the flesh, are shown crude executive muscle power
through Bills such as these. It is my belief that even if a Constitutional Amendment is
approved by a two-third majority by both the Houses, it would still be void as repugnant to
the basic features of the Constitution, which cannot be repealed or diluted even by two-
third majority necessary for Constitutional changes which do not tinker with any basic
feature.
The accompanying simple Judicial Appointments Commission Bill, 2013, purports to deal
with the Constitution and working of the proposed Judicial Appointment Commission.
Mischievously, though doubtless cleverly, the structure and shape of the Commission are
defined in Section 3 of this Bill, and not in the Constitution Amendment Bill. The structure
leaves much to be desired. It is both improper and unfair and is no improvement of any
kind on the current collegium system, which has existed from 1993 as a result of the Nine
Judge Bench decision of the Supreme Court in the Famous Supreme Court Advocates-On-
Record Association and Others v/s Union of India reported in (1993) 4 SCC 441.
The cleverness, however, consists in creating an illusion that even while the structure of the
Judicial Appointments Commission prescribed by Section 3 will remain a permanent
statutory provision, the One Hundred and Twentieth Amendment Bill, 2013, sanctifies the
Commission by the introduction of Article 124 A in the Constitution. This not only makes
the Commission enjoy the longevity of any ordinary Constitutional provision, but also
ensures that its actual composition and working shall be regulated by Parliament by a
simple majority in both Houses. In other words, any government in power enjoying the
majority of even one vote in both Houses can alter its shape and make it utterly useless if
not impotent. Let me illustrate. In its present form, the Judicial Appointments Commission
will consist of the Chief Justice, two other judges next to the Chief Justice of India in
seniority, and the Union Law Minister as ex-officio members. Only two other persons
described as eminent persons are to be nominated by a collegium consisting of the Prime
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Minister, the Chief Justice of India and the Leader of the Opposition in the House of the
People. Being a simple Act passed by the Central Legislature, even all this can be scrapped
and the Union Minister of Law and Justice be made the sole appointing authority with or
without some consultation with some judge of the Supreme Court. In other words, this Bill
is a corrupt and unconstitutional method of setting aside the nine-judge bench decision of
the Supreme Court, by throwing dust in the eyes of the people. The least an honest
government should have done was to place the entire content of Sections 3, 4 and 5 of the
Judicial Appointments Commission Bill, that deal with its powers of appointment and
transfer of the Supreme Court and High Courts, including some other consequential
provisions, into the newly created Article 124A of the Constitution.
The combined effect of the two Bills is to restore the pre 1993 position, which had been
sanctified by the S.P. Gupta judgment of 1981. It is that judgment, which was set aside by
the subsequent nine-judge bench, which, fortunately, put an end to the doctrine of
executive primacy in the matter of high judicial appointments. The nine-judge bench
accepted the argument made by me, supported by other distinguished counsels, that Article
50 of the Constitution is a basic feature of the Constitution within the meaning of that
concept enunciated by the thirteen-judge Kesavananda Bharati judgment of 1973, reported
in (1973) 4 SCC 225. It is this judgment, which protected the Indian Constitution and the
people of India from the kind of diabolical constitutional subversion by the late Indira
Gandhi and her sycophantic advisers.
Article 50 of our Constitution is an extremely simple Article consisting of only one sentence.
"The State shall take steps to separate the judiciary from the executive in the public services
of the State." This Article does not mean that judges of the Supreme Court will not socially
mix with the ministers or live in separate bungalows or in different towns. The Supreme
Court rightly construed this Article to mean that the government, which is the cause of
more than half the litigation in our courts, cannot be permitted to have any control over the
appointment of judges, who must deal with every litigant including the government, on the
merits of their case. A frequent litigant cannot be permitted by any civilised society to be
the appointing authority of judges of his liking or choice. The following passage from that
judgment is its crux and rationale: "The question of primacy to the opinion of CJI in the
matters of appointment and transfers and their justifiability should be considered in the
context of the independence of the judiciary, as a part of the basic structure of the
Constitution, to secure the 'rule of law', essential for the preservation of the democratic
system. The broad scheme of separation of powers adopted in the Constitution, together
with the directive principle of 'separation of judiciary from executive' even at the lowest
strata, provides some insight to the true meaning of the relevant provisions in the
Constitution relating to the composition of the judiciary. The construction of these
provisions must accord with these fundamental concepts in the constitutional scheme to
preserve the vitality and promote the growth essential for retaining the Constitution as a
vibrant organism."
Having decided that the literal interpretation of Article 50 of the Constitution, which may
well support the primacy of executive choice, must be rejected in favour of a construction
which is in conformity with the basic features of the Constitution, which cannot but be the
total independence of judges from executive control and influence, the collegium system for
selection of judges was instituted. It is now the basic feature of our Constitution.
I have great respect and affection for my friend Kapil Sibal, the Hon'ble Minister of Law and
Justice. I do not wish to expand this lest it may embarrass him with his colleagues in the
Congress. I would not easily oppose Bills introduced by him, unless my understanding of
the Constitution and my conscience urge me to revolt against acquiescence in such diabolic
pieces of legislation. Both my intellect and conscience tell me that these bills will set up an
evil precedent of Parliament deliberately damaging a basic feature of the Constitution,
making liberty tenuous and gravely attenuated, weakening the judiciary, rendering human
rights vulnerable, and exposing democracy to the threat of extinction.
These Bills affect the future of the entire Bar of the country, as well as people's life and
liberty, which call for protection by an independent judiciary. They will affect the
confidence of the industry and agriculture, and would remove all fear from those who have
looted our national wealth running into US$1,500 billion, equivalent to Rs 90 lakh crore.
8/27/2014 Two bills that threaten democracy
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Though the present collegium system does ensure independence of the judiciary from the
executive, it could do with further reform, though not dilution. A possible reform is
certainly a National Judicial Commission with proper structure and mandate. It must
include the Prime Minister or any other minister of his choice, but equally it must include
the Leader of the Opposition, for parity between the government and the Opposition. The
present Bill has almost destroyed the role of the Leader of Opposition, his role being
confined to participation in selecting two eminent citizens along with the Prime Minister
and the Chief Justice of India. The membership of the Chief Justice of India as a
chairperson is an absolute necessity. The organised Bar of the country must be represented
in the commission, as no one knows the character and calibre of the potential appointees
better than practicing lawyers. The Lokpal, whenever the office is created, should be a
member, and the academic world and social sciences must also be represented by a process
which excludes executive influence.
I would like to add that though some members of the judiciary may be accused of some
questionable acts, on the whole the judiciary has discharged its responsibility in a much
more honourable and conscientious manner than the other branches of government. I had
hoped that the government would refer the Bills to a Select Committee of Parliament where
the views of the judges, the Bar, jurists, and other opinion leaders would be taken on board,
for the education of the nation and enlightenment of its elected representatives.
Well, the Bills have been passed, with the saving grace that the BJP, which had earlier
supported the Bill, walking out. I was the lone opponent, and I am confident that the
Constitution Amendment Bill cannot pass the test of judicial scrutiny.
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shurku mishra a year ago
Respected Sir,
here is a track record of the congress manipulation of judiciary which will explain
the present move.
1-Smt Indira Gandhi gets convicted by the Allahbad High Court . She appoints a
chief justice of her choice superseding many and manages an acquittal for herself
2-Narasimha Rao get convicted in the lower court but could manage an acquital
from the higher court.
3-In the Jharkhand MP bribery case the bribe giving and taking was full proof but
both the giver and taker escaped on some funny ground which i still fail to
understand. However those MPs got bolder by the escape and became more
corrupt.Unfortunately the election commission also remained a silent spectator.
4-One congress politician from Odisha was convicted by the court and was
branded by the learned justice as the HABITUAL BRIBE GIVER, but he also
escaped from the Supreme court.
5- No one has forgotten the role of Congress, the CBI and the SC in the closure of
the Bofors case and releasing the money Katrochi got illegally.
6- Justice Ranganath Mishra was awarded two times to Rajyasabha for his help to
congress in anti Sikhs riots.
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Manas Kumar Sen a year ago
I do not find any merit in Jethmalani's argument. It is full of high falutin words
and not much substance. The Judiciary has been encroaching into Parliament and
Executive's domain rather blatantly during the past few years. This has to be
prevented.

1
Reply
Shriram a year ago Manas Kumar Sen
living under a incompetent and severely corrupt govt. has made your mind
dull. What you are talking is judicial activism.. which became necessary
because the government was incompetent and somebody had to do the
work!

2
Reply
Manas Kumar Sen a year ago Shriram
I will rather tolerate a corrupt government instead of judicial
activism. The role of judges is quite clear, i.e., to interpret the law.
They have no authority under the constitution to encroach in to the
domains of executive or legislature. Unfortunately, this has
happened since the days of Justice Krishna Iyer. This has to be
prevented with all the might.

1
Reply
Nams. 8 months ago Manas Kumar Sen
Hey Manas, Judicial activism is constitutionally valid and
protected. Read on 'check and balance' in separation of
power. Good Luck !


Reply
samy a year ago Manas Kumar Sen
I agree, it is you scratch my back I will scratch yours.


Reply
Anand Mohan a year ago
These bills need to be passed urgently. Collegium system has not served the
country well. Judges themselves appointing judges has never been hailed as good
idea in a democracy. Let other parts of state structure also take part in selection of
judges.There is no point in blindly opposing all legislations brought by the govt. In
that situation of thorough opposition , no change will ever take place anywhere.

1
Reply
samy a year ago Anand Mohan
Brave I agree thorougly


Reply
sita chandra a year ago Anand Mohan
How about executive getting more and more crimnal every day, as clearly is
coming to light with daily or weekly scams having power to appoint
judiciary of their choice? Is that the change you want?


Reply
samy a year ago sita chandra
Then reform the the system. No candidate with criminal record
should be voted to assembly/parliament. There are thousands if not
million candidates to choose from. If an FIR has been lodged say a
year before or so before the elections, till he is not proven guilty, he
should not be in the fray,


ajay3 a month ago
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ajay3 a month ago
Sir, this article is not dated. Please provide date of publishing for
all articles. Editors and site administrators, please take notice.


Reply
Jatin Sheth a year ago

Dear Jethmalaniji,
Whether Congress or BJP, both have criminal record as far as political parties are
concerned. Modiji from Gujarat, whom you are supporting has not appointed Lok
Aayukta since last 10 years! To prevent the honest Judge, Shri R.A.Mehta to take
charge of the appointment as Gujarat Lok Aayukta, Modiji spent Rs. 45 crores to
pay for Supreme Court Advocates and yet he lost all his cases. Modiji has insulted
Supreme Court and Gujarat Janta by not honoring Supreme Court Judgements.
Instead, he broughtbill in Assembly to change entire Lokaaukta act in his favor!
Will you please comment on this? The only party which respects constitution and
cares for genuine democracy is Aam Aadmi Party. May I request you support AAP
for the larger national interest?


Reply
naraynan sethurao a year ago
Respected Sir,
After reading this article, I find it will be not easy for a layman to grasp the
contents of this article, the inference one should make out of this.Can this be made
easy and lucid to understand the perils of this amendments and the consequences
it has on democracy?


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