Beware of the 120th Amendment

On Thursday, the Rajya Sabha, with the “co-operation”, or, perhaps, connivance of the Bharatiya Janata Party-led National Democratic Alliance, passed the Constitution (120th Amendment) Bill which seeks to delete Articles 124(2) and 217(1) and introduce a new Article 124-A.

The related Bill No. LXI, meant to set up the “Judicial Appointments Commission” has been referred to a standing committee.
Voices from all sides — except the lone one of Ram Jethmalani — rose in a chorus to denounce the collegium system of appointments to higher judiciary brought in through a nine-judge bench judgment of the Supreme Court in 1992. The 120th Amendment to the Constitution along with Bill No. LXI are touted as the complete cure to all collegiums-related maladies. The day-long Rajya Sabha debates indicated that all the nation’s grievances, from corruption and nepotism to alleged judicial overreach, are born out of the collegium system.
When the Amendment Bill was introduced in the Rajya Sabha, the BJP made a strong plea that it be referred to a parliamentary committee. At which point the deputy chairman made a significant revelation that at the Business Advisory Committee meeting held earlier, the BJP did not want such a reference and that, accordingly, the chairman of the Rajya Sabha had given a ruling which the deputy chairman could not reverse. In protest, the BJP MPs walked out of the House, presumably to eliminate the last bit of hurdle towards securing the required majority.
If a film critic were to review NDA performance on Thursday, the score would be, at least, four stars for the script, direction, dialogue and acting. With similar cooperation assured, the outcome is likely to be the same in the Lok Sabha as well. And, eventually, the new laws will be operational.
What will this mean for the nation, and its judiciary?
Law minister Kapil Sibal was outspoken and frank when he said that his government wanted to revert to the pre-collegium days when the executive made the appointments and transfers as they wished — the chief justice and other judges were only consulted.
Bill No. LX of 2013 to amend the Constitution and Bill No. LXI to set up a Judicial Appointments Commission fulfil the law minister’s objective of having unbridled power to appoint pliable and friendly judges — termed “committed judges” during Indira Gandhi’s regime — and transfer the inconvenient ones. The projected Judicial Commission is, thus, a perfect red herring.
Article 124(2) of the Indian Constitution, which the Amendment Bill seeks to delete, reads: “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose — provided that in the case of appointment of a judge other than the chief justice, the Chief Justice of India shall always be consulted”.
Article 217(1), a corresponding provision dealing with the appointment of judges of high courts is also sought to be erased.
These constitutional provisions, in particular the expression “consultation”, were interpreted in the Second Judges Case (1992) — the Supreme Court Advocates-on Record Association vs Union of India — through which the collegium system was introduced. The majority of the nine-judge bench, speaking through Justice J.S. Verma said, “It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure, but also by preventing the influence of political considerations in making the appointments. It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the chief justice of the high court in Articles 124(2) and 217(1)”. This declaration of law will endure even beyond the deletion of articles.
The new Article 124A sought to be introduced reads: “(1) There shall be a commission to be known as the Judicial Appointments Commission. (2) Parliament may, by law, provide for — (a) the composition of the commission; (b) the appointment, qualifications, conditions of service and tenure of office of the chairperson and other members of the commission; (c) the functions of the commission; (d) the procedure to be followed by the commission in discharge of its functions; (e) the manner of selection of persons for appointment as Chief Justice of India and other judges of the Supreme Court, chief justices and other judges of high courts; and (f) such other matters as may be considered necessary.”
The amended Constitution guarantees a “Judicial Appointment Commission”, but the composition of that commission, the qualification of its members and conditions of service, among other things, are subject to laws made by Parliament — needless to say, made from time to time. Parliament may also be persuaded to make reservations on the basis of caste, community, region and religion in the matter of appointment to the commission. The selection of judges is left to the commission, but in accordance with the wishes of Parliament — thus giving scope for modes of promoting mediocrity based on political considerations.
The proposed Judicial Appointment Commission Bill has a provision in Clause 6 which empowers the Central government to appoint “such number of officers and other employees as it may be considered necessary”. The commission will have no say in the matter. The officers and employees of the Judicial Appointment Commission will be government servants and act as the eyes and ears of the government.
A combined reading of the two bills makes it abundantly clear that the commission about which much noise has been made will only remain on signboards hanging from a government building. The commission can be radically altered by a simple majority in the House or even by an Ordinance. Ram Jethmalani in his Rajya Sabha speech highlighted these aspects as well as anyone can.
Deleting Article 124(2) and 217(1) is a major step, and the proposed 120th Constitutional Amendment will violate the basic structure of the Constitution, hence liable to be declared void by the Supreme Court, unless the alternative provided is equally efficacious. An independent judiciary is part of the basic structure, whatever else may be or not.
The Indian Constitution contains elaborate provisions to keep Public Service Commissions, at least, partially insulated from direct inference from the executive in its day-to-day functioning. A whole chapter containing nine articles is devoted to this subject. Similarly, the Election Commission’s functions and independence are dealt with in sufficient detail in six different articles.
So then why not make the Judicial Appointment Commission part of the body of the Constitution so that what is proposed is also assured permanence? The Judicial Commission originally proposed in 1990 by the then law minister Dinesh Goswamy and subsequently proposed by law ministers like Arun Jaitley were of different kind — those proposals were to incorporate the commission into the Constitution and thus keep it out of political tinkering.
I wonder whether the eminent lawyer Mr Jaitley and other leaders of the country’s main Opposition party, the BJP, willingly supported this cruel joke on the nation that is waiting with hope for meaningful reforms of the justice system that still commands some credibility. That’ll change once what Mr Sibal has proposed, with Mr Jaitley’s support, becomes law.

The writer is a senior advocate of the Supreme Court and former additional solicitor-general of India