January 14, 2014
POLITY & GOVERNMENT BILLS
The constitution (120th amendment) bill, 2013, and the judicial appointments commission bill, 2013
APPOINTMENT OF JUDGES TO THE SUPREME COURT– PRESENT SYSTEM
Article 124(2): Clause (2) of Article 124 inter alia says that:
“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 and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
Under our constitutional scheme, the President is the constitutional head. In exercise of the powers vested in him by the Constitution, he acts upon the aid and advice of Union Council of Ministers. So far as the executive power of the Union is concerned, it is exercised by the Union Council of Ministers in the name of the President.
Clause (2) of Article 124 speaks of ‘consultation’, whether it be with the Chief Justice of India, Judges of the Supreme Court or with the Judges of the High Court. The expression is not “concurrence”.
Practice followed till 1981: A practice had developed over the last several decades according to which the Chief Justice of India initiated the proposal, very often in consultation with his senior colleagues and his recommendation was considered by the President (in the sense explained hereinabove) and, if agreed to, the appointment was made. By and large, this was the position till 1981.
Collegium of judges: In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta vs. Union of India, the majority held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries (President, Chief Justice of India, the Governor of the State, the chief Justice of the High court) mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court. This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment. The balance tilted in favour of the executive. Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less. After this judgment, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of affairs developed its own backlash.
Advocates-on-Record Association Vs. Union of India case
- In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India over-ruled the decision in S.P.Gupta.
- The nine-Judge Bench (with majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.”
- For the same reason, the primacy of the Chief Justice of India was held to be essential. It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive.
- In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal. The 1993 decision was reaffirmed in 1998 in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution. All the basic conclusions of the majority in the 1993 decision were reaffirmed. There was, however, some variation. It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to which the proposed name comes from must also be consulted. In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court.
THE CONSTITUTION (120TH AMENDMENT) BILL, 2013, AND THE JUDICIAL APPOINTMENTS COMMISSION BILL, 2013
- The former CJIs M.N. Venkatachaliah and the late J.S. Verma; the retired Supreme Court judge, Justice Ravindaran, and Professor Madan Gopal expressed concern over the appointments made to the High Courts under the present collegium system in which, they said, lobbying was rampant and the most eligible were often ignored. They strongly advocated the setting up of a JAC to select eligible and meritorious candidates as High Court judges
- The Judicial Appointments Commission Bill, 2013, seeks to reform the appointment of High Court and Supreme Court judges by establishing a Judicial Appointments Commission (JAC). Simultaneously, a constitutional amendment providing for the recommendation of the JAC for appointment of judges to the government is proposed to be made by the Constitution (120th Amendment) Bill, 2013.
- The proposed Bill provides for the constitution of the Judicial Appointments Commission, comprising of —(a) the Chief Justice of India, an ex officio Chairperson; (b) two other Judges of the Supreme Court next to the Chief Justice of India in seniority as ex officio Members; (c) the Union Minister in charge of Law and Justice as ex officio Member; and (d) two eminent persons, to be nominated by the collegium consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People, as members.
- The JAC would recommend to the government persons for appointment to the offices of Chief Justice of India, judges of the SC, chief justices of the high court and other judges of the high court.
- The proposed Bill would enable equal participation of Judiciary and Executive, make the system of appointments more accountable, and thereby increase the confidence of the public in the institutions.
Modelled on the U.K. Judicial Appointment Commission- Why?
- The proposed JAC in India is modelled on the U.K. Judicial Appointment Commission. The U.K. JAC, in contrast, expressly excludes politicians and those connected with politics from being part of the JAC. This is done in order to secure the independence of the judiciary.
- There are several models to choose from. But seeking a broader collegium on the lines of the United Kingdom Model needs a serious exploration.
- The appointments procedure in the United States is far too politicised: it requires politicians to both nominate and approve appointments. The intense political manoeuvring in the U.S. system has created a phenomenon “where judges rarely oppose outcomes that are philosophically in accordance with the party which nominated and confirmed them.”
- In Germany, the U.S. system of political partisanship is whittled down by the requirement of a two-thirds majority for the approval of a candidate.
- Therefore, the candidate must necessarily be acceptable to divergent political segments and hence the chances of political partisanship are eliminated to a great extent.
- South Africa’s Judicial Services Commission is highly politicised. With 15 politicians and eight lawyers, it has the ingredients necessary for the erosion of judicial independence.
- The JAC of the U.K. has a clear edge to secure the independence of the judiciary as its composition is dominated by non-politicians.
There are also serious defects in the proposed legislation.
1) The JAC has the Chief Justice of India and two senior most judges. Then there is the Law Minister and two “eminent persons,” bringing the non-judicial component to three out of six members.
- The selection of eminent persons risks the taint of political appointments, given the fact that the selection is made by the Prime Minister and the Leader of the Opposition constituting a total of two, and reducing the judicial component consisting of the Chief Justice to one.
2) The constitutional amendment bill, which provides the constitutional support for the JAC bill, does not incorporate the composition of the JAC.
- The composition of the JAC has to be entrenched in the Constitution itself; otherwise it could be subject to changes by any ordinary law by the government of the day. This is also the view of the standing committee.
3) The JAC is vested with the power to recommend persons for appointment of the Chief Justice of India — which means the rule of seniority has been given the go-by.
- Every eligible senior judge will now face a direct threat to being superseded from being appointed as Chief Justice.
4) To seek the opinion of the government and the Chief Minister of the State in the appointment process again raises the risks of political appointments — which in turn jeopardises independence.
5) Under the JAC bill, the JAC has been entrusted with the formidable task of not only appointing 31 SC judges, but over 800 judges in 24 high courts.
- To be effective, such a commission has to be a full-time institution.
- It is impossible for it to operate part-time with ex-officio judges of the SC, who have full-time court work, and the law minister, who has other duties, in charge.
- In the UK, the judicial appointments commission has 15 commissioners and is a permanent institution working day-to -day with a large secretariat to support it
6) Under the JAC bill, the JAC would have the onerous task of appointing SC judges as well as the high court.
- As the criteria for selection for SC judges is different from that of high court judges, and considering the importance of SC judges, there should be a separate commission for appointments to the SC, as in the UK.
7) A serious lacuna in the bill is that the selection of judges is to be determined by regulations made by the commission to “shortlist” candidates.
- There is no indication of how candidates will be shortlisted and by whom.
- In the absence of definite objective criteria, the shortlisting could be highly subjective and even arbitrary. This has also been noted by the standing committee in its report.
- The standing committee has suggested public notifications be issued inviting applications for appointment to the post of judges of the high court, as is the practice in the UK. However, this is unlikely to work well in India.
- Advertising for a judicial post is likely to deter well-qualified candidates from accepting appointments because they will be apprehensive of the impact a rejected application could have on their reputation.
8) In the UK, next to the consideration of merit for appointment as a judge, the JAC considers diversity of appointments with respect to appointment of women and judges from different communities.
- This is an important consideration, which is absent from the JAC bill. The bill only requires the JAC to recommend persons of “ability, integrity and standing in the legal profession”, with no regard to diversity.
- Responding to the criticism, the Parliamentary Standing Committee on Law and Justice has recommended that the structure and functions of the Judicial Appointments Commission (JAC) — which will replace the present collegium system — be mentioned in the Constitution itself so as to protect the basic structure of the Constitution.
- The committee suggested that there should be three eminent persons in the commission, instead of only two as provided for in the Bill. At least one of the three members should be from SC/ST/OBC/women/minority, preferably by rotation.
- It has also suggested the government to consider the feasibility and practicability of creation of a State-level commission so as to reduce the JAC’s responsibility to select 800-odd judges of 24 High Courts
- The committee wants the government to incorporate amendments in the Bill as suggested by it.
- The JAC opens up the selection process, giving the executive, legislature and citizens greater say while maintaining the primacy of the judiciary. It balances diverse interests, making it difficult for any one group to railroad its preferences. But to be a truly worthwhile improvement, the JAC should also lay out clear criteria for the shortlist and for final selection. Given the magnitude of its responsibility, it should also have the infrastructure and ability to seek full information about prospective judges, including public feedback
CHINA’S PEACEFUL RISE – IS IT SO?
China’s peaceful rise or sometimes referred to as China’s “peaceful development” is an official policy in China under the leadership of Hu Jintao. The term was implemented to rebut against the “China threat theory”. As China emerged as a great political, economic and military power, China wanted to ensure other countries that its rise will not be a threat to peace and security. China implements this policy by internally harmonizing China’s society and externally, promoting a peaceful international environment. It seeks to characterize China as a responsible world leader, emphasizes soft power, and vows that China is committed to its own internal issues and improving the welfare of its own people before interfering with world affairs. The term suggests that China seeks to avoid unnecessary international confrontation.
For roughly a decade, the Chinese government has spared no effort in trying to convince the rest of the world that china’s rise will be peaceful. The issue of China’s peaceful rise has always been remained a hot topic of debate between the realists and Liberal minded intellectuals.
Realists argue that China would behave like a traditional great power (that means may be she use its financial and military power to dominate others) Liberal minded analysts hope that, given the right incentives, such as the economic benefits of globalization, China will behave responsible and become a stakeholder in the existing international order.
Chinese stand on Arunachal Pradesh (Staple visa controversy and protest following the visit of President), China’s controversial intrusion into the Indian territories inside the Line of Actual Control and recently announced controversial Air defense identification zone in East China sea have made the China’s peaceful rise doubtful.
As Chinese foreign policy began to grow more assertive, particularly on territorial disputes, realists who insisted that China would behave like a traditional great power gained greater credibility.
Really, Is China behaving like a traditional great power? Answer lies in Announcement of East China Sea ADIZ
With the most recent escalation of tensions between China and Japan over the ownership of a group of small uninhabited islands in the East China Sea, there is little doubt that advocates of China’s peaceful rise are losing the debate. What makes the latest round of escalations special is the way Beijing chose to challenge Japan’s sovereignty claims over the Senkaku Islands, as Japan calls them (they are called the Diaoyu in China).
At the heart of the dispute are eight uninhabited islands and rocks in the East China Sea. To be sure, this particular dispute began in 1972, when the United States handed over administrative authority (but not legal ownership) to Japan. For four decades, China and Japan had adhered to a tacit agreement over the status of the islands: Japan would retain administrative control and claim sovereignty, and China would contest the sovereignty but not challenge Japan’s administrative control.
This understanding broke down in late 2012 when Tokyo was forced to “nationalise” the islands in order to prevent an extremist right-wing leader from purchasing some of the islands from their private owners, a development the Japanese government thought would lead to a confrontation with Beijing. China regarded this as a step tantamount to formally establishing sovereignty claims over the islands.
As part of its response, Beijing has gradually escalated. After repeatedly sending ships and planes into the territorial waters and airspace of the islands to challenge Japanese claims of exclusive administrative control, On November 23, 2013 Chain announced the East China Sea Air Identification Zone covering most of the East China Sea.
The Chinese announcement of ADIZ met with strong protest from Japan, US, South Korea and other ASEAN countries.
Even though sovereign nations are not prohibited by international law to set up ADIZs, and more than a dozen countries have done so (including Japan and the US), China’s ADIZ in the East China Sea overlaps with those of Japan and South Korea. Most alarmingly, it also covers the airspace over the disputed islands.
Beijing’s intentions are crystal clear. By setting up an overlapping ADIZ over the disputed islands, it has mounted a legal challenge to Tokyo’s claims of administrative control. Under the rules announced by Beijing, all aircraft flying through China’s ADIZ must com
municate their flight plans and identify themselves to the Chinese military, which will enforce the ADIZ. Obviously, Beijing views compliance with these rules as recognition of China’s legal control over the airspace over the islands and, by implication, the islands themselves.
Beijing’s escalation has infuriated Tokyo, which promptly announced that it would not recognise China’s ADIZ, and instructed its civilian airlines not to comply with China’s rules.
Japan also openly challenged China by sending military aircraft through China’s ADIZ without notifying the Chinese military (South Korea has also dispatched military jets into the Chinese ADIZ).
Caught in the middle is the US, a treaty ally of Japan.
Eager to show solidarity with Japan but reluctant to allow the dispute to escalate further, Washington has opted for a middle course.
It has flatly rejected China’s new ADIZ and sent two unarmed B-52s through the Chinese ADIZ almost immediately after Beijing’s announcement.
However, to avoid potential catastrophic accidents in the zone, the US government has also “advised” its civilian airlines to comply with the Chinese ADIZ.
Moreover, International community is worried about three consequences.
First, Beijing’s attempts to enforce the ADIZ in future could result in accidental military clashes with Japanese and US military aircraft in the zone, thus starting a conflict no one really wants. Similar attempts could also lead to aviation disasters similar to the infamous KAL 007 incident (when a Soviet MiG shot down a South Korean jumbo jet in 1983).
Second, encouraged by this precedent, China could set up a similar ADIZ in the South China Sea, using the same tactic to assert its maritime claims.
Third, emboldened by the lack of a unified response from the international community to its unilateral move, China might be tempted to flex its muscles even more recklessly in future.
The ultimate question to ask is whether China gains or losses more in this case.
Tactically, we must concede that Beijing’s move is brilliant: it is controversial, but not illegal.
Its new ADIZ should help China achieve its objective of contesting Japan’s sovereignty claims through clever legal manoeuvres.
But strategically, we would find it hard to deny that Beijing has lost more.
China has lost credibility of its claim of peaceful rise and it has also pushed Asian nations, bound by their fear of an assertive China, closer to each other and to America.
Reference : Based on editorial published in Indian Express, wikipedia