By admonishing the Union government for delaying the appointment of a Lokpal, the Supreme Court has sent across a timely message that efforts to cleanse the economy must be matched by equally strong measures to cleanse public life too.
why did supreme court admonish the government ?
Apex court feels that current govt. is not willing to give effect to Lokpal and Lokayuktas Act, 2013, and is trying to show its helpnessness by hiding itself in the non availability of a proper leader of opposition in the lower house acceptable under the existing law( no opposition party has requisite 10% seats in the lower house), which is needed to set up the five-member selection committee, entrusted with the responsibility to select lokpal.
There can really be no excuse for the failure to establish an institution even three years after passing the relevant law. The only reason for the delay in the appointment of the Lokpal is that a minor amendment to the Lokpal and Lokayuktas Act, 2013, to enable the leader of the largest party in the opposition in the Lok Sabha to join the five-member selection committee, is yet to be passed. A parliamentary committee has endorsed the amendment, which is on the same lines as the mechanism for the selection panels for the Central Vigilance Commissioner and the Chief Information Commissioner. The court has indicated that it will not allow the institution to remain inoperative indefinitely, evoking apprehension on the Centre’s part that a judicial direction may be given to get the amendment passed or an ordinance promulgated. The Centre needs to re-examine its own options on implementing the Lokpal Act. The law now provides for a five-member panel to select the anti-corruption ombudsman, comprising the Prime Minister, the Lok Sabha Speaker, the Leader of the Opposition, the Chief Justice of India and an eminent jurist. The hitch is that there is no recognised LoP in the lower House. The question now is whether the Centre is right in claiming the Congress floor leader cannot hold that post because its bench strength is well short of the required 55.
The rule that the Speaker can recognise as LoP only the leader of the principal opposition party that has 10 per cent of the total number of Lok Sabha seats is based on precedent. It was a ruling by Speaker G.V. Mavalankar, cited in the ‘Directions for the Functioning of the Lok Sabha’, with respect to recognising a group as a ‘parliamentary party’. The only legal provision defining the ‘Leader of the Opposition’ is a 1977 law concerning the office-holder’s salary. The definition says the LoP shall be the leader of the party in opposition with “the greatest numerical strength” and “recognised as such by the Speaker”. Therefore, there is nothing in law that prevents the Speaker from recognising the present Congress Parliamentary Party leader as the LoP. Instead of waiting for the amendment, the Speaker can adopt the solution of recognising the CPP leader and expedite the Lokpal’s formation. It just needs political will and some magnanimity.
Narendra Modi swore into national office on May 26, 2014. A day later, his cabinet decreed its first official act: an ordinance. It was an innocuous amendment, and parliamentary din and drama was just days away. But Modi did not wait: He didn’t need to. In hurrying an ordinance, he profited from eminent company and umpteen precedents.
India’s pantheon of prime ministers, Nehru to the Gandhis, Desai to Vajpayee, and those amid and after, have befriended the power to ordain in alarming ways. The friendship has cost India, its democratic balance, dear. The legislative chambers, repeatedly defied, desecrated and dented, are a front: They matter less and, at times, not at all. Instead, a super-executive role-plays Parliament.
How did we get here?
The Indian Constitution bestows lawmaking powers on Parliament. It also authorises the president to make laws—called “ordinances”. Article 123 says: The president may issue an ordinance if at least one of the two houses isn’t at hand and he feels that a law is immediately needed. The president, in this respect, is a figurehead. The prime minister and his council are the barons. They decide if ordinances are needed, their content and timing. (Chief ministers and their councils command similar powers in the states.)
The power isn’t too radical. A suite of safeguards exists. Ordinances, for one, are temporary. To gain permanence, both houses must approve of them. It must happen within a short window: six weeks from the day houses reassemble. Ordinances lapse if denied parliamentary benediction—they “cease to operate”. Together, the power and its defences reveal a happy mean: The executive makes temporary laws, if needed. But the legislative chambers remain the arbiters of permanence. India, it seems, is still reliably a parliamentary system.
This, alas, is not true. Nearly 70 years and 700 ordinances after they began, the happy mean has ossified into an unhappy fate. The safeguards, its democratic instincts, are gone; their meanings lost. The provision is a beast of its former self, midwifed by indulgent executives and reluctant courts.
Take the first safeguard. It has two parts: At least one house of Parliament should not be in session and the president must be satisfied that an ordinance is immediately needed. The conditions, it seems, restrict the executive’s power to ordain. But do they really?
The Punjab assembly, in 1968, was riddled with dissent. Chaos reigned. A faction moved a resolution, vying to unseat the speaker. He rejected the motion, and adjourned the assembly. A crisis brewed: The state budget needed approval, but legislators weren’t sitting. The governor prorogued the assembly (dismissed the session), and issued a budget ordinance.
Annoyed legislators ran to the court. The assembly was dismissed solely to make an ordinance possible, they strained. The Supreme Court rebuffed the claim. Legislative calendars are the prerogative of the executive. Only the executive may decide if, and for how long, an assembly must be in session, the court confirmed. So long as the constitutional minimum is met, the executive may convene or dismiss houses at will.
Issuing ordinances, already easy, became easier. They may be issued, we know, if one or both houses are not in session. But only the executive may determine the dates and duration of such sessions. The first part of the safeguard was gone.
And the second part? On July 19, 1969, Indira Gandhi, armed with an ordinance, nationalised 14 of India’s then largest banks, commandeering nearly 70 per cent of all deposits in the banking system. Rustom Cooper, a shareholder of a nationalised bank, challenged it. His claim: The president wrongly promulgated the ordinance. There wasn’t any real need to nationalise, he said. Indira Gandhi, unsure of her hold in the Congress party, sprang a surprise on her rivals. It was a political move, not a constitutional necessity. The Supreme Court, again, declined. Presidential satisfaction is beyond reproach, it ruled.
Presidents may issue ordinances for any reason. There are no limits, none; banal, bizarre motives count, too. Another safeguard had fallen.
The court tabled an indulgent invitation. The executive, predictably, didn’t disappoint. Since 1950, India has had an average of nearly 11 Central ordinances per year. Every government has issued them, some more than others. The reasons varied. Some took to them as a simpler method to make laws: Parliamentary “annoyances”—debates, readings, votes—could be dispensed with. More sinister motives animated others, especially minority governments. Lacking numbers in one or both houses, they resorted to ordinances to enact their legislative agendas. The chambers diminished, either way.
There are two other safeguards. What happened to them?
Ordinances, recall, are temporary. Their fate rests with Parliament. But imagine a workaround. An ordinance is issued. Parliament reassembles. While in session, it does not act: The ordinance is not voted into law or voted down. Can it be reissued?
In 1978, D.C. Wadhwa, a feted economist, stumbled upon a peculiar trail in Bihar. An ordinance, he noticed, was repeatedly reissued; its life insincerely prolonged. Wadhwa looked closer. What he found horrified him. Starting 1967, the Bihar assembly did not really function. The executive did; it became the prime lawmaker. It issued ordinances, reissued them and, kept doing so. Some lasted for nearly 14 staggering years. The executive, otherwise languid, had perfected a constitutional abomination. Wadhwa put together his findings in a book, and challenged the praxis in the Supreme Court.
Can ordinances be reissued endlessly? No, the court warned. The practice is an affront to Parliament and its primacy; it is invalid. Reissues, though, are occasionally legal, a careless court intoned. Parliament may busy itself with other matters. Sessions may be short. Ordinances may escape due attention. If so, reissuing them is valid. The twist left another safeguard impotent.
The court’s anti-logic made ordinances still easier. National executives put the abomination to practice, wrapped with the excuse of legislative busyness. Central government began reissuing ordinances in 1992 and, it soon rose to disturbing peaks.
We are left with a final safeguard: If an ordinance fails, it ceases to operate. What do these words mean?
The state of Andhra Pradesh had too many part-time village officers. It economised. An ordinance abolished the post in 1984. But the assembly resisted the decree. Ultimately, it failed; it ceased to operate. A retrenched officer demanded back his work. An ordinance had taken it away, and it failed. His position stood revived, the ex-officer insisted.
The Supreme Court denied relief. Failed ordinances cease to operate prospectively, it reasoned. Past actions stay valid; they aren’t undone. Failure is future-directed. If an ordinance abolishes a post, it stays abolished. The ordinance may fail; actions already taken don’t. The claimant had nothing to demand back: His office was gone. It shall stay gone.
The final safeguard, too, stood decimated. The ordinance mechanism is now a constitutional freebie. To the executive, it costs nothing. A failed ordinance is a success, too. The possibilities are terrifying. An executive may resort to an ordinance aware of its impending failure in Parliament. The court’s anti-logic commands that it still succeed. With ordinances, legal success is guaranteed; the executive cannot fail.
Understandably, then, ordinances are mired in a hedonistic excess. Nearly 70 years of relish and indulgence has left India with an unhappy inheritance—a permissive executive that lords over an enfeebled Parliament.
A gentle parliamentary exception has alchemised into a beast. A conspiracy of executive practices and judicial misreadings, actions and inactions, demands and undemands, shadows the provision on ordinances. The executive may, effectively, make any law at any time for any reason. Permanence is a matter of reissuing them. And if, for some reason, they lapse, everything done, all actions taken, remain forever valid. Why do we then need a Parliament?
A super-executive is India’s Parliament.
Given the trust deficit between the two after the SC, in October 2015, struck down the NJAC Act and the 99th Constitutional Amendment which gave politicians and civil society a final say in the appointment of judges in HC and the SC.
IN first remarks as Union Law Minister on Monday, Ravi Shankar Prasad, speaking to The Indian Express, struck a conciliatory note vis-a-vis the judiciary.
Behind the scenes however, both sides are locked in an unprecedented exchange of notes, arguments and terms to hammer out the Memorandum of Procedure (MoP) that will define the contours of this vital and uneasy balance of power.
Of course, all this is easier said than done.
Given the trust deficit between the two after the Supreme Court, in October 2015, struck down the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which gave politicians and civil society a final say in the appointment of judges in High Courts and the Supreme Court.
It was this judgment that had recommended “appropriate measures” to improve the working of the Collegium system. A separate order, passed by a five-judge bench in December 2015, listed factors — these included eligibility criteria, transparency in the appointment process, secretariat and complaints — for preparing the MoP.
Multiple accounts, exclusively available to The Indian Express, reveal that the exchanges between the two sides reveal a tantalising faceoff that’s as much about ideas as it is about power. The key flashpoints: importance of seniority, need for judges to write their reasons down, having a committee to vet candidates to tapping the Bar for the bench.
Seniority & Merit
The government’s proposal is that while promoting a High Court Chief Justice or a judge to the Supreme Court, the criteria of seniority, merit and integrity would be followed. Preference should be given to Chief Justices of the High Courts keeping in view their “inter-se seniority”.
However, the judges’ view, said to be communicated to the Government recently, is that “the criteria of seniority as a High Court judge, subject to merit and integrity, would be followed”.
In other words, “seniority” is, yes, a factor but it should be subject to “merit and integrity”.
Reasons in writing
The government has proposed that “in case a senior Chief Justice being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing”. The government says that of the five judges of the Collegium for appointing Supreme Court judges, the views of each one must be made known to the government.
This is necessary for the sake of “transparency” and to ensure there is no “favouritism”, is the government’s argument.
The Collegium’s counter-argument is that “recordings of reasons for overlooking a Chief Justice or a senior puisne Judge will be counter-productive” as the reasons specified may mar his/her prospects of being elevated to the Supreme Court at a “future point of time”. Moreover, it may also affect his/her duties as judge or Chief Justice and may become a “permanent blot on his/her career”.
The judges quote a 1998 judgment of a Supreme Court Constitution Bench in response to a Presidential reference on the issue of appointment and transfer of judges. “Where therefore, there is outstanding merit,” the judgment says, “the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all-India seniority list or in his own High Court.. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit.”
The government thinks that merely recording that “he has outstanding merit” is not enough — and not acceptable. Because its argument is: How can you be sure no favouritism has taken place when judges with “seniority” in High Courts are ignored? In fact, the government claims, the 1998 judgment does not imply that reasons need not be given when senior judges are being overlooked.
The government proposed that up to three judges may be appointed from the Bar or from distinguished jurists with proven track records. And that all judges of the Supreme Court should be open to recommend names for these postings. But the judiciary says that this “upto three” tantamounts to “either restricting the intake from the bar or fixing a quota of the bar”. And in neither case does it fall within the framework of the Constitutional provisions.
After deliberation, the government has agreed with this view that fixing a limit is not necessary so long as their representation is assured.
Committee & Secretariat
One serious difference between the two sides is over the government’s proposal to set up an institutional mechanism in the form of a committee to assist the Collegium in evaluation of the suitability of prospective candidates. It wants two retired judges of the Supreme Court and an eminent person/jurist to be jointly nominated by the Chief Justice of India and the government. The Collegium feels that’s not necessary.
The government counters that “wider consultation is necessary to select best candidates”.
To underline this, it argues that “consultation” is embedded in the Constitution when it comes to judges’ postings. Article 124(2) says: “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.”
The government has also proposed that there be a secretariat that maintains a database of judges, schedules Collegium meetings, maintains records and receives recommendations and complaints related to judges’ postings. The judiciary hasn’t rejected the idea of “a permanent secretariat “ but it believes that forming and functioning of it should be left to the wisdom of the CJI and it should be under the ambit of the Registrar of the apex court.
The government, however, wants it to be under the Law Ministry. It argues that the secretariat would help cast a wider net for better candidates and for the Collegium to decide, it should have comparative data.
Surely, the binding nature of the Collegium’s recommendation is what’s bothering the government. As per the existing system, the Collegium’s recommendations can be sent back but if it reiterates then the same, it is binding on the President.
That, the government’s advisors argue, is “only a matter of Healthy Convention” and not a legitimisation of the judiciary to “ride roughshod” on the appointments.
Above all, the government is arguing that three important judgments of 1993, 1998 and 2015 on appointment of judges does not give absolute powers to the Collegium. Instead, they ask for “participatory consultative process at the highest level”.
All these arguments by the government reiterates, expectedly, that in the integrated process “political executive has no role to play is incorrect”.
The collegium, while returning the government’s draft, was of the view that it was an attempt by the government to circumvent judicial pronouncements and settled law on appointments in the higher judiciary
The government is learnt to have decided not to accept many crucial recommendations and observations made by the Supreme Court collegium regarding the draft memorandum of procedure (MoP) for appointments to higher judiciary.
Among other things, transparency — or the lack of it — in the manner in which the collegium feels the appointment process should be carried out is turning out to be a major sticking point and the same will be conveyed to the Chief Justice of India (CJI).
The government is also of the opinion that the fear of the collegium that a clause in the draft MoP, which will allow the government to reject any recommended name on grounds of national security, is unfounded.
“Names will still come from the CJI. The government, if such a case arises, will share with the CJI any information that it has about a recommendee which makes it clear that his appointment will not be in the interest of the country. Also, the issue of Healthy Convention, which the judiciary refers to while arguing against such a clause, was not a mandamus that has to be followed. Read the Second Judges Case judgment,” a source told The Indian Express.
In its judgment in the Second Judges Case — Supreme Court Advocates-on-Record Association versus Union of India (1993) — the Supreme Court, while dealing with the issue of “non-appointment of anyone recommended on the ground of unsuitability”, had said that in case, “after due consideration of the reasons disclosed to the CJI, the recommendation is reiterated with the unanimous agreement of the other members of the collegium, then that appointment as a matter of healthy convention ought to be made”.
It is this sentence that the government is planning to cite to buttress its stand that its objection to any candidate recommended by the collegium merits more consideration than simply reiteration.
The Chief Justice of India T S Thakur had last month conveyed the collegium’s views to the government, voicing the collegium’s outright rejection of many of the clauses of the draft MoP finalised by a committee of ministers headed by External Affairs Minister Sushma Swaraj.
Work on bringing in a new MoP started after the judgment of a five-judge bench of the Supreme Court, headed by Justice J S Khehar in October 2014, declared as “unconstitutional and void” the National Judicial Appointments Commission (NJAC) Act passed by Parliament. The bench later directed that a new MoP be finalised by the government in consultation with the CJI.
The government sent the draft of the MoP to the CJI on March 22 while the CJI returned the same with the views of the collegium on May 23. The government will write to the CJI soon, sources said.
The government, after a series of meetings, has now decided to convey to the CJI that most clauses in the draft MoP to which the collegium has objected to reflect the spirit of judgments of the Supreme Court in the second, third and fourth (NJAC case) Judges cases, and also the crux of the reports finalised by the Supreme Court-appointed amicus after going through suggestions received from the public and others after the NJAC judgment.
At a meeting last week, where Union Law Minister D V Sadananda Gowda was also present, the consensus was that the collegium’s views don’t take into consideration that the new MoP is aimed at framing a transparent “eligibility criteria” for those considered for appointments to higher judiciary.
“There has to be fixed criteria to be followed by each high court while recommending names of lawyers and sessions judges for elevation to the HC bench. We want HC collegiums to consider 15 years record of each sessions judge while considering his case, so that performance as a judicial officer is the main criteria while making the recommendation, whereas the SC collegium wants to focus on seniority,” said a source in the Union Ministry of Law.
“Similarly, for lawyers, who are being considered for elevation, we are keen that the number of cases in which they have appeared should not be the sole criteria — focus should be on the quality of that lawyer’s work, something that is easily found out by going through the judgments in important cases he has appeared. We are also not in agreement with the view of the collegium on the issue of age bracket of those being considered for elevation. While the collegium feels that persons between the age of 44/45 years and 58 years can be considered for elevation, we are keen that the upper age limit should be pegged at 55 years,” the source said.
The government is of the view that while deciding to make additional judges of the HC — appointed for a period of two years — permanent or even re-appointing them after completion of two years, the collegium isn’t “strictly complying” with the existing MoP.
“The existing MoP clearly says that the Chief Justice (collegium) while recommending an additional judge as a permanent judge, should furnish statistics of month-wise disposal of cases and judgments rendered by the judge concerned as well as the number of cases reported in the law journal duly certified by him. However, we have found that this system is not being followed. We are going to insist on it,” the source said.
The government is also planning to cite the existing MoP to buttress its case for a more prominent role — read recommending names — for the executive in the appointment process. “Under the existing MoP, in case the Chief Minister desires to recommend the name of any person, he can forward the same to the Chief Justice for consideration by the collegium. However, this is not being followed now since Chief Ministers are never told about the Chief Justice’s plan to hold a meeting of the collegium,” the source said.
The government is also going to push the CJI and other members of the collegium to establish a “transparent and workable” complaint mechanism to deal with complaints against sitting judges. The government is of the view that the in-house mechanism is not working well and is shrouded in “too much secrecy” and, hence, should be replaced with a more effective system.
Sources said the government will insist on putting in place a uniform complaint redressal mechanism across all high court which “clearly define” a time-bound procedure to deal with complaints.
Another issue where the government is not in sync with the collegium’s view is on the establishment of a permanent secretariat to assist the collegium in the appointment process. “It should be clearly said in the MoP who will head the secretariat,” the source said.
The collegium, while returning the government’s draft, was of the view that it was an attempt by the government to circumvent judicial pronouncements and settled law on appointments in the higher judiciary. As first reported by The Indian Express, CJI Thakur and four senior-most judges of the Supreme Court held extensive deliberations on the MoP, with the final view that the draft wasn’t “acceptable” in its present form.