Why not A MAC?

Why Not A MAC?

By

J.L. GUPTA

Years back when I was still trying to find my way in Court, there was a rumor that the person who had been appointed  as the Law Minister  in the Union Government was not even a law graduate. The media was not as alert and active as it is today. Resultantly,  the matter was soon forgotten. Nobody had raised any ruckus.  Recently, again, when a young lady was sworn in as a Minister, the issue of her educational qualifications was picked up by the media and the people. The factual position is getting clearer.  However, a question that arises is – Can the Prime Minister pick up  anyone whether literate or illiterate and the President  of India is bound to administer the oath of office to such a person? A similar issue would also arise in the States too.

 We have a written Constitution. We are governed by the Rule of Law. No one, howsoever high can act arbitrarily. Not even the  Prime  Minister of  India. Everyone has to act reasonably and within the limits of law. These principles  have been repeatedly  laid  down by the Supreme Court. Resultantly, no one can appoint a person as even a peon unless he fulfills the prescribed qualifications and has gone through a process of selection. Why should the Ministers be an exception even to such a salutary principle?

The Parliament has recently approved the Bills to constitute the National Judicial Appointments Commission. Seeing the controversy surrounding the selection of Ministers a thought that crosses the mind is -Should we not consider the desirability  of  having the MAC –the Ministers’ Appointments Commission too? The constitution of the commission can be broadly on the same lines as that of the JAC.

In my view such a Commission could help the Prime Minister and the Chief Ministers to select the most suitable persons as Ministers. The process shall ensure transparency and inspire confidence in the minds of the people. A person who may be under a cloud shall be eliminated at the time of scrutiny by the Commission. Still more, it shall be possible to pick up experts in different fields for inclusion in the Cabinet. Further more, the Prime Minister shall be saved the embarrassement  of having to plead  ‘coalition dharma’ in the manner that Mr. Modi’s immediate  predecessor had to on certain occasions. It is true that Mr. Modi has a massive mandate. He is not a dummy but a Dynamic leader. Still, it could help the Government to select and appoint the most suitable persons as Ministers.

Today, the government may justifiably feel that such a Commission has never been appointed earlier. Thus, it is not necessary to do so. However, the Elections shall soon be held in the States. At that stage the Act may legitimately be invoked for the avowed object of serving the larger public interest. How? Some of the provisions could be :-

1.    Laying down a firm limit on the number of Ministers etc. who could be appointed in a State. This would substantially control the numbers and reduce the expenses. We need to remember that even economy is a source of revenue;

2.    Prescribe academic and other qualifications including experience etc. so that the Minister can perform his functions effectively;

3.    Nobody who has already got 2 children and has not undergone surgery so as to ensure that he does not add to the numbers in the country shall be eligible to become a Minister; hold any other elected office; or even to claim any benefit of reservation etc. as may be granted by the State or an Authority to the Socially and educationally backward class of citizens or to the members of any minority etc.;

4.    A provision for absolute exclusion of persons facing a criminal charge or those under a cloud can also be made.

I hope that the MAC would help to clear the peoples’ perception of the politicians. It should also fill the gap between the politician’s promise and performance. Shall it ever happen? Time alone shall tell. We have to wait and see.

       

''THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION''

The National Judicial Appointments Commission

Is it the beginning of the end of Judiciary’s Independence?

The clamour against the Courts has been continuous. Initially, there was talk of a ‘committed judiciary. Then, Judicial accountability and transparency. And so on. The latest is – Why should Judges choose Judges? Thus, the effort to replace the Collegium by a Commission. The Bill has already been approved by the Lok Sabha. Is it the right thing to do? I think, No. Why?

            (A) Let us see what is happening in the country.

1.     Who selects the Ministers? The Prime Minister and the Chief Ministers.

2.     Who selects the Generals? The Generals.

3.     Who selects the Army Commanders? The Army.

4.     Who selects theGovernors and the Government servants? The Government.

And so on. Then, why do we want a different method for the Judiciary? Why should the Judiciary be not allowed to select the Judges? Is it an effort to destroy the Institution that alone has performed and exposed the scams and scandals like the Coalgate and 2G?

         

               (B) What is the Constitutional Scheme?

The founding fathers had created a judicial pyramid. The subordinate courts form the base. Then the District Courts. The High Courts at the State level. The Supreme Court was placed at the Apex. They also laid down the procedure for selection and appointment of Judges. The selection and appointments of the officers in the Subordinate and District Courts are made in accordance with the Rules framed and promulgated by the Government in accordance with the Constitution. The ‘control’vests in the High Court. So far as appointments to the higher judiciary are concerned, the matter was considered by the Supreme Court in ‘Supreme Court Advocates on Record Association vs. UOI’ (1993) 4 SCC 441 and then on a Presidential Reference by a nine Judges Bench.

The dictum has been followed. Judges have been selected by the Collegiums and appointed as Judges and Chief Justices in the High Courts and the Supreme Court for  some time now. The scope of interference by the political executive has been reduced to the minimum. Resultantly, criticism from different quarters is understandable. There is talk of setting up a Commission. What is the basic complaint? Will the Commission improve the quality of judges?Or is it the beginning of the end of Judiciary’s independence?

No system of selection can be absolutely perfect. Institutions run by human beings shall reflect human frailties. A fact which deserves mention is that the Constitution itself provides for having the Union and the State Public Service Commissions to make selections for the various Services. The Commissions have been in place for a long time. Has the performance been beyond reproach or even satisfactory? Have these Commissions not been described as the ‘personal service Commissions? The kind of eminent persons, who are proposed to be included in the NJAC are usually members of the State and Union Public Service Commissions too. Yet, what do we have? Petitions in the Courts alleging all kinds of malpractices. Still more, States have moved petitions, prosecuted Members or Chairmen of the Commissions for different irregularities and even offences. Would a similar Commission for Judicial Appointments change everything? Looks unlikely.  

Secondly, State is the single largest litigant in the country. Should a litigant have any say whatsoever in the choice of judges? I think No! It is against the basic principles of Justice & fairplay.

Thirdly, in a democracy, independence of Judiciary is of paramount importance. A fearless and independent Judiciary is a basic necessity under the scheme of the Constitution of India. It is a part of the ‘basic structure’ and should not be sacrificed at the altar of executives’anxiety or ego. Legally speaking, the validity of the proposed Law is extremely doubtful.

And then the Members of the Collegium see the performance of the Judges and lawyers who have to be considered for appointment to the High Courts or the Supreme Court. They examine judgments of the persons who have to beconsidered for  elevation. So far as the JAC is concerned, the majority shall not have that opportunity. They will necessarily have to depend upon hearsay evidence. This will be totally improper.

It is alleged that the Collegium does not have the mechanism to ‘verify the character and antecedents of Judges.’ I think, it is not so. The Court or/and the Chief Justice can always ask the concerned agencies to do the needful. In certain cases, it has been actually done. I think the fear is wholly unfounded.

Sometimes, it has been suggested that the Judges indulge in mutual give and take. As a result, some people who should not have become Judges at all, even got elevated to the still higher positions and Courts. Assuming it to be correct, can anybody put his hand on his heart and say that as a people, we are totally impervious to all kinds of political and social influences or pressures? Has it never happened that at the highest level the files are held up till the name of a particular person is cleared by the Collegium? Still more, do our leaders not insist upon representation for every caste, creed and Court in the country at every level? In such situations, mediocrity has prevailed over merit. Unfortunate. But is JAC the solution?  No! A rare exception under the Collegium system has the potential of becoming a rule when the final word is left with the executive. Are the series of scams and scandals that have taken place in the recent past in India not enough to caution us about the level of political morality? And then, Judiciary is one institution in India that has performed and delivered. We can tinker with it only at our own peril. Let us not do so!

THE HOLIDAY HABIT

“The holiday habit”

By

J.L. Gupta

MY mind and mattress are good friends. There is a close kinship between the two. I love to doze during the day. Sleep at night. And get up with a yawn on a new day. This has been my practice during the long years of an uneventful existence. And it is real­ly as He had ordained. All work and no play would make life a dull day. God made holidays to give human beings some rest. So, men who toil must get a chance to sit and relax.

In India, we follow this divine dictate in more than a full measure. I remember my school, college and university days. We had lots of holidays. All the Sundays. Before the examinations, there were holidays for preparation. After the exams, to wait for the result. Then came the summer vacation, the autumn break and the Christmas holidays. Besides these, the birth­days, the martyrdom days and the innumerable festivals. In all, as a people, we have more holidays than the days for work. And so far as I am personally concerned, this holiday habit of childhood has persisted. In fact, as a people, we all seem to enjoy every minute of leisure. Yet, in some quarters it is believed that the judges have too many holidays. Is it so? No! They are really overburdened.

Anyone familiar with the working of courts would know that big bundles of files are the constant companions of a judge. Almost every day, a judge has to read about hundred files. The holidays and weekends are usually spent in dictating orders and lengthy judgments in complicated cases. He has to read even the orders dictated by him so as to ensure that there are no typographic mistakes. Despite sincere efforts, arrears do get accumulated.  The vacation is used to clear the backlog; to Study the new laws and the decisions delivered by different courts in the world. This helps the development of new concepts, growth and interpretation of laws.

In a democracy, the judges play a paramount role. They do not merely decide the disputes or interpret the laws. The Judiciary as an institution even tests the constitutional validity of laws. They are the sentinels of the citizens’ Rights and liberty. The Judges keep a check on the arbitrary exercise of power by the executive. And in India, the Judiciary has performed despite a heavy load of work and inadequate infrastructure. Still more, the judges do not work in closed chambers. Our Courts are open-air theatres. A visit to any Court would show that the judge has done his homework.  That should show that it is hard intellectual work, and the vacation is a necessity and not a luxury.