Government and Opposition were today united in criticising the functioning of the judiciary while seeking to scrap the collegium system of appointing judges to higher courts, saying it is essential to restore the delicate balance of power which has been disturbed.
As Rajya Sabha took up a bill to amend the Constitution to set up a Judicial Appointments Commission replacing the collegium system, Law Minister Kapil Sibal, Leader of Opposition Arun Jaitley and several other members were of the view that the present system of appointing judges to Supreme Court and High Courts lacked transparency and accountability.
Moving the Constitution (120th Amendment) Bill, 2013,Sibal said the Judiciary "rewrote Constitution" in 1993 when the collegium system of appointing judges to higher courts was adopted which disturbed the delicate balance between the Judiciary, the Legislature and the Executive.
"Sometimes moments come in the life a nation when you have to revisit the past and embrace the future. One such moment has come today," he said.
Sibal, a renowned lawyer, noted that it was in 1993 that the Supreme Court sought to change the procedure of appointment of judges in higher judiciary with an interpretation of Article 124 (2) by bringing in a collegium system.
"With greatest respect to Supreme Court of India, I believe they rewrote Constitution," he said.
Underlining that appointment of judges has "nothing to do with judicial function", he said, "The acts of appointments are Executive acts. The judiciary has taken over executive power by rewriting Article 124 . That balance must be restored. Executive must have a say in appointment."
Sibal said, "It has disturbed the delicate balance of separation of powers. There is very clear division of powers among the Executive, Legislature and Judiciary in our Constitution. Judiciary cannot take over the function of the Executive."
Sibal noted that Judiciary says government must be transparent and accountable and that accountability is at the heart of the Executive's decision making but nobody knows how a judge is chosen under the collegium system.
"How is a judge appointed? We have no access. There is no transparency. RTI doesn't apply. We can't seek any information. What is the basis," the minister said.
Jaitley, also a noted lawyer, echoed Sibal's views as he pressed for re-establishment of the "separation of powers".
The BJP leader said when other establishments of the democracy do not infringe upon functioning of the judiciary, then why would it ask the government to do this or do that and direct even on the economic policy of the government.
"Courts cannot review a policy and say that my policy is better that your policy...It cannot say how to be tough on the Naxalites," he said.
Citing the ban on iron ore exports, Jaitley sought to link judicial orders partially to the present state of Current Account Deficit and depreciation of Rupee as a result of that.
Attacking judiciary, he said no government, irrespective of its complexions, has ever said that since court has three crore cases pending, somebody else would do it for courts.
Stating that the present system of appointing judges lacks transparency, Jaitley said the three-member collegium often left out the best of the lot for a promotion and go ahead with their choices.
"A collegium is as good as the members of the collegium," he said as he observed, "judges appoint themselves and judges are accountable to judges."
Sibal said the collegium system, under which the Chief Justice of India, in consultation with Supreme Court judges, makes appointments in High Courts has "disturbed the very independence of the High Courts".
"If the Supreme Court is so keen to protect the independence of the Judiciary, it should be equally keen to protect the independence of High Courts. In the case of appointment of Judges in High Court and Supreme Court, this delicate balance of power has been disturbed," he said. Sibal said the proposal to set up Judicial Appointments Commission was also the part of BJP's national agenda of governance in 1998.
"I compliment the Leader of Opposition who then as the Minister introduced the Bill to set up the Judicial Commission in 2003. All we have done is that we have increased the number of eminent members from one to two who will be appointed in the National Judicial Commission which will appoint the Judges. We are grateful to the Leader of Opposition that we are only adopting what he had suggested," he said.
Sibal said the Law Commission had said in 2008 that the Supreme Court interpretation of Article 124 (2) is contrary to the letter and spirit of the very article.
He recalled that Justice M N Venkatachaliah and Justice J S Verma, who had favoured the collegium system had later said they regretted their decision and that the system was not working.
The minister also recalled that as a counsel, he had in past supported the idea of the judiciary appointing judges.
"I also regret...Wise men are always proved right. When we were young, we wanted to change the system and sorry we disregarded your wisdom," Sibal said as nominated member and former Attorney General of India K Parasaran reminded him that Sibal was opposed to any outside role in judicial appointments.
"I am not saying that you should go back to 1993. There should be a Judicial Commission so that a collaborative exercise is there for their appointments. We do not want to impose our decisions in judicial appointments.
"That is why we have made provisions for inclusion of two eminent persons in the Judicial Commission whose names will be decided by the Prime Minister, Leader of Opposition in the Lok Sabha and Chief Justice of India jointly," the minister said.
He urged the members to allow the amendments to be carried out and pass the Bill when it comes before the House without insisting that it should be sent to the Standing Committee. Ravi Shankar Prasad (BJP), however, had a word of caution saying "in principle we are fully supporting the National Judicial Commission. But let it go for vetting to the Standing Committee.
"Let the Standing Committee take a final call. Let an impression not go to the country that parliamentarians are so keen to pass the Bill that they did not send it even to the Standing Committee."
Overcoming resistance from the judiciary, the bill to scrap the collegium system of appointing judges to the Supreme Court and High Courts was introduced in the Rajya Sabha last week.
The bill, which entails Constitutional amendment, seeks to set up a Judicial Appointments Commission (JAC) to recommend appointment and transfer of Supreme Court and High Court judges.
The bill states that the JAC will make the participants in the selection accountable and introduce "transparency" in the selection process.
With the creation of the proposed body, the Executive seeks to have a say in appointment of members to the higher judiciary.
India perhaps is the only country where judges appoint judges.
The Bill seeks to set up a panel headed by the Chief Justice of India (CJI) to appoint and transfer senior judges.
The other members of the proposed Commission would be two senior-most judges of the Supreme Court, the Law Minister, two eminent persons as members and Secretary (Justice) in the Law Ministry as Convener.
"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," reads the Statement of Objects and Reasons of the Bill.
The Law Ministry has been pushing the proposal, but some sections in the government as well as judiciary had reservations over its certain provisions.Minister of State for Parliamentary Affairs Rajeev Shukla said while 70 per cent of the judges are honest and good, the basket is getting rotten because of the remaining 30 per cent who are dishonest.
"70-80 per cent judges are very good, very honest. But, if one apple in the basket is rotten, they spoil the rest. We have to take action," he said. Shukla said many retired judges have repeatedly said in the past that action should be take to stop this and correct the judiciary.
"Judges also want this Bill to be passed," he said. Criticising the functioning of the judiciary, Shukla said it may take around 323 years to resolve three crore pending cases in various courts of the country. Noting that there was need for a Judicial Appointments Commission, Satish Chandra Misra (BSP) said Jaitley and Sibal are on the same page regarding the bill, but disagreed with the Leader of Opposition on deferring the legislation.
The BSP member said there has to be accountability of judges. He also raised the issue of social justice for members of SC and ST.
Supporting the bill, K N Balagopal (CPI-M) said "arbitrary working" of judiciary is affecting the country and there is a need to balance the power between three pillars of democracy -- legislature, executive and judiciary.
He suggested setting up of national judiciary service. Sukhendu Sekhar Roy (AITC) said judicial activism has surfaced due to the "objective failure of the executive and inaction on the part of legislature."
The need of the hour is to support the bill and ensure there is an objective eligibility criteria for appointment of judges. Ramgopal Yadav (SP) said nowhere in the world one gets to see "judges appointing judges" as in India.
He demanded that justice be made available at an affordable fee. N K Singh (JD-U) said the existing collegium process for appointment of judges is "unique and hybrid" and is compared with the best international practice.
Globally, judges are appointed through four ways -- nomination by executives, election and cooption by judges and appointment of committee comprising eminent persons.
"We fall in unique category of collegium, which has conflict of interest," he said and suggested increased domain knowledge and specialities for judges to deliver better judgements.