Accountability and Independence of Judiciary: Impact of Judicial Appointment Commission Bill, 2014 on these two aspects.

Accountability and Independence are considered two sides of the same coin. If one is present the other has to be there to ensure a balanced framework for smooth and effective functioning of the Indian Judiciary. But the basic issue relating to concoction of the two aspects seems really a tough job for the policy makers on one hand and legal experts on the other hand. The debates on setting up of a Judicial Appointment Commission through Judicial Appointment Commission (JAC) Bill, 2013 have got a lot of media coverage but what still remains unsettled are the questions raised on its constitutionality and to what extent can this step by the government would go on to achieve the objectives it has been formulated for.

Separation of power is said to be one of the most fundamental features of constitutional setup in our country. The fountain-head of the power is the Constitution itself. The basic reason behind this doctrine was to ensure non - interference of other bodies of the government in the Judicial process. Now it becomes imperative on our part to raise this question that whether the appointment of Judges should also be kept out of the purview of the government control while conforming to the basic principle behind the doctrine of Separation of Power? Can it be considered feasible for India to allow the decision making body to have absolute powers in appointment of Judges? This is something which can be answered in both affirmative and negative. If it is in affirmative i.e if judiciary is allowed to have absolute powers without government interference then although it would result in providing independence to the Judiciary but at the same time that would lead to monopoly and nepotism and this is one of the major effects which the experts think have been resulted by the collegium system. And if it is answered in negative, there would be a lot of government interference without Judiciary having an upper hand in its own affairs. The requirement of checks and balances and accountability of the judiciary would be met but it would not allow effective functioning of the Judicial System.  Therefore the call for the day is to strike a balance between the two aspects and to come up with such parameters that seek for reforms in the appointment process.

The existing Collegium system has been condemned by the various experts on the grounds that it is wholly and largely dependent on the decision taken by CJI and four senior most Judges of the Supreme Court while appointing judges to the Supreme Court. In the case of appointment of judges to the High Court, again the collegiums system constitutes members only from the judiciary i.e CJI and 2 senior-most judges of the Supreme Court. This has put the process of appointment of judges in the arena of doubt and dilemma thereby rendering it ineffective and unjust. But the debate does not end here for the basic reason that the Bill, 2013 proposed for setting up of Judicial Appointment Commission is equally criticized by the legal experts and eminent jurists stating that the new proposed collegium constituting 2 eminent persons selected by the Prime Minister, the CJI and the Leader of Opposition would again not serve the purpose as desired so.

Thus, to strike a balance between the two requirements, the model must be judiciously adopted that it not only encompasses members of the Judiciary and the government but also people from non legal background and also other stakeholders so that diversified forum is formed to appoint the Judges. Also, instead of limiting the number of members of the commission to just 5, the number should be increased to more than double of what is otherwise proposed in the new bill so that the appointment is done by a larger group which to a great extent diminish the possibility of arbitrariness and biased approach on the part of the commission.

The government should take this as an opportunity to make Judiciary as transparent as it can by keeping a close check on the initial process i.e the decision of who would be the upcoming set of Judges. Although prima facie it looks not more than a mere administrative function, yet the consequences and the reach it would lead to would to a great extent determine the future of a large number of people who always seek to get justice. It is the duty of the Parliamentarians to secure and safeguard the independent nature of Judiciary and this can be done by providing a proper model for the appointment of the Judges and not by directly interfering and taking away the powers in the pretext of formulating a commission. It should not be made a sham process which is what the bill of 2013 is leading to.

Journey to our Constitution: Indian Councils Act 1861.

This Act undone effect of the 1833 Act inasmuch as it restored the power of legislation to the Governments of Madras and Bombay. Also it made notable changes in the composition of the Governor General's council for executive & legislative purposes.

Changes brought:

Executive purposes.

Council of the Governor General was expanded and a fifth ordinary member was added. Now it included total 7 members (other two members being the Governor General and the commander in Chief).

Legislative purposes.

For the legislative purposes, not less than 6 and not more than 12 members were additionally to be nominated (comprising of both official and non-official members) by the Governor General and they were to hold the office for two years. Out of these, not less than half were required to be Non-Official. 

Similar provisions were enacted for the Governor's Council in provinces of British India.

Portfolio system:

With the Indian Councils Act for the first time Portfolio system started. Each member of the Council of the Governor General was allocated portfolio of a particular department. Lord Canning (1856-1858 as Governor general, 1858-1862 as Viceroy) was the First to start a Portfolio system.

Before the adoption of the portfolio system in the Government of India, the whole business of the Indian governmental business was carried out by the Governor-General-in Council (earlier name of Cabinet Secretariat), As the amount and complexity of business of the Government increased, the work of the various departments was distributed amongst the members of the Council: only the more important cases were dealt with by the Governor-General or the Council collectively.

Criticism:

1. Though the non-official members were added, the councils were neither a deliberative nor a representative body as these members could only consider the proposals kept before them by the Governor-General. But they could not criticise it.
2. The Governor -General was given overriding powers inasmuch as it enjoyed the powers of prior sanction, without which a bill could not be introduced in the assembly. Also, it enjoyed the ordinance making power in situation of emergency, having the force of Act of the Council. He could also veto a bill after it was passed.

Interview on Article 356: post-Bommai situation

Justice B.P. Jeevan Reddy, former judge of the Supreme Court, had a key role in the March 11, 1994 judgment in the Bommai case. He was part of the apex court's majority opinion and wrote an eloquent judgment, along with Justice S.C. Agrawal, dealing with both federalism and secularism that is widely appreciated. He was interviewed in Hyderabad by R.J. Rajendra Prasad:

• What in your assessment is the essential difference between the situation pre-Bommai and post-Bommai?

What Bommai did was to lay down certain guidelines and certain standards in exercising power under Article 356. In fact, it is the case where we elucidated the meaning of the Article, consistent with the spirit of the Constitution and the background in which the Article was enacted. It was brought to the notice of the Supreme Court, and it was an undeniable fact, that the Article was used indiscriminately, or misused as one may call it, on a number of occasions, before the judgment in the Bommai case. Even at that time, it was said that on more than 90 cases, the power was exercised; and in most of the cases, it appeared to be of doubtful constitutional validity.

That power was exercised to dismiss the State Governments controlled by a political party opposed to the ruling party at the Centre. The Supreme Court wanted to introduce a certain clarity to regulate the power, by defining the power, by laying down standards according to which the power is to be exercised.

Since the judgment of the Supreme Court becomes the law of the land, it is obvious that the Central Government is bound by the judgment. It is therefore clear that after the Bommai case, the governments have been more careful, more on guard, more wary of exercising this power, lest their exercise should be set aside by the Courts.

As we all know, in the case of the dismissal of the Uttar Pradesh Government, the proclamation by the President was set aside by the Allahabad High Court following the Bommaijudgment. But for the Bommai judgment, it is obvious the High Court could not have set aside the order of the President. That is the difference between pre-Bommai and post-Bommai.

• Do you think Article 356 should be abolished?

I don't think Article 356 should be simply abolished. Maybe it can be amended to make it more difficult for the President, or the Union Council of Ministers, to dismiss State Governments. But abolishing the Article itself is not advisable. You cannot say what situation, which cannot be conceived today, may arise in the future, in which the Central Government will have to step in in the larger interests of the nation. But we must develop a constitutional culture in which any power given by the Constitution to any Authority should be used only for the purpose intended, and not to achieve some other extraneous purpose.

• Can you explain what amendment would be in order?

By the Constitution 44th Amendment, this Article has been tightened a little. The amendment can be on the lines of the judgment in the Bommai case, in which the President, soon after issuing the Proclamation dismissing a State Government, was required to place it before Parliament for approval.

• Looking at it historically, under what circumstances would the use of Article 356 be just, if at all?

It is not possible to catalogue the grounds under which the power may be exercised. The standard is that the situation exists in which the State Government cannot be carried on in accordance with the provisions of the Constitution. The particular situation cannot be identified.

• In the 90-plus instances where the power under Article 356 was exercised till now, were there any instances where the power was exercised in a just manner?

We did not go into a review of the earlier cases, but generally, in most cases, it appears that the power was exercised arbitrarily.

• How can Bommai be better enforced in the rough and tumble of Indian politics?

The Governor has no power to dismiss a State Government. It is only the power of the President, which means the Union Council of Ministers. So far as the exercise of the power by the Union Council of Ministers is concerned, the Constitution is itself meant to regulate and to determine, to standardise, the political conduct. Politicians should learn to conduct themselves according to the spirit of the Constitution. Otherwise there is no purpose for the Constitution. If you want to act, you must act in accordance with the Constitution.

Take the example of the United Kingdom. It is a very developed country but the Prime Minister, the Leader of the Opposition, they all function in accordance with the constitutional provisions. That is why we speak of the need to develop a political culture of functioning in accordance with the Constitution. We should develop such a culture.

• Would use of Article 356 be mala fide if there is an agreement to dismiss an elected Government as part of a pre-electoral understanding?

It is a political question. I do not want to answer it.

• What do you think can be done about the problem of a Governor being a political agent of the Centre?

Governors do not realise the importance, significance and the functions of the office they hold. They think they are merely the agents of the Centre. No. The State Government is his Government. When the Governor speaks in the Assembly, he talks of "his" Government. At the same time, he has taken the oath to uphold the Constitution. When he discovers that the State Government is not functioning according to the Constitution, it is his duty to report the matter to the Central Government.

As we said in the judgment on Bommai, the Governor is like a person wearing two hats. With one hat, he is the head of the State Government and with the other, he is a representative of the President. He is not a mere agent of the President.

That is why we made some strong comments against the Governor of Karnataka in the Bommai case. We said that the President's proclamation should be placed in Parliament within two months and approved. These are all the checks, placed in the interests of the Constitution, in the interests of the nation, and for the public good.

Journey to our Constitution: Charter Act 1853

This was the last Charter Act. It brought about significant changes in the Governor General's Council. It marked the expansion of the Council of the Governor General for legislative purposes. The council for legislative purposes which had 6 members now was expanded to 12 members. The additional 6 members were called Legislative Councellors These 12 members were : 

1. The Governor General (1)
2. The commander in Chief (1) 
3. Members of the Governor General's Council (4) 
4. Chief Justice of the Supreme Court (Calcutta) (1) 
5. A regular judge of the Supreme court Calcutta (1) 
6. Representative members drawn from the company's servants with 10 years minimum tenure and appointed by the local governments of Bengal, Madras, Bombay and North Western provinces (4)

The fourth member (Lord Macaulay) was placed at an equal status with other members. He was also made entitled to sit and vote in the meetings of the Executive Council of the Governor General.

Other changes.

Birth of Indian Civil Services (ICS) Examination.

The previous charter act of 1833 had laid down that the Court of Directors should nominate annually 4 times as many candidates as there were vacancies, from whom one should be selected by competitive examination. The charter act of 1833 also provided the Haileybury college of London should make quota to admit the future civil servants. However, this system of an open competition was never effectively operated. 

A The Committee under the chairmanship of Lord Macaulay had prepared the regulations in this context. 

1. The report said that Haileybury should cease to be maintained as higher education college for the ICS.
2. There should be a broad general education rather than specialized education for the ICS recruits.
3. The recruitment should be based upon an open competitive examination to bring out the best candidates and not through mere superficial knowledge.
4. The appointments should be subject to a period of probation. 
5. Charter Act of 1853 deprived the Court of Directors of its right of Patronage to Indian appointments and now it was to be exercised under the regulations. 

This was the Birth of Civil Services which was thrown in 1854 for open competition.

Separate Governor for Presidency of Bengal.

The Charter act of 1853 provided for appointment of a separate Governor for the Presidency of Bengal, distinct from the Governor General. However, the court of Directors and the Board of Control were authorized to appoint a lieutenant governor, till the appointment of a Governor was made. 

However, the Lieutenant governor was appointed in 1854, but no Governor was appointed for Bengal till 1912.

NEXT: Indian Councils Act 1861