New Delhi: Pressing ahead with its agenda of legal reforms, the Congress-led United Progressive Alliance (UPA) government is likely to push for new laws that would hand back to the executive the power of making judicial appointments and deal with other key concerns.
India is the only country where the power of appointing judges is exercised by the judges themselves and the executive’s role is restricted to issuing formal announcements of the appointments.
The proposed pieces of legislation such as the Judicial Accountability and Standard Bill, 2009 as well as the Commercial Courts Bill, 2009 are expected to be introduced in the winter session of Parliament beginning on 19 November.
Law and politics: A file photo of Chief Justice K. G. Balakrishnan (right) with Union law minister M. Veerappa Moily. Experts say that a lack of consensus among political parties may hinder the proposed legislation. PTI
According to PRS Legislative Research, a Delhi-based research unit, the Judicial Accountability and Standard Bill aims to replace the Judges Inquiry Act, 1968, revisit the appointment process, address broader accountability objectives (and not just impeachments) and, most importantly, make asset declaration by judges compulsory.
The Commercial Courts Bill provides for setting up commercial courts across the country to help deal with high value cases and specialised courts that will help tackle cases related to domestic and foreign investments.
At present, there is no law governing the declaration of assets by judges. Earlier this month, Supreme Court judges voluntarily disclosed their assets online, shedding their reluctance to do so after coming under the public scanner.
Experts, meanwhile, say though important, merely passing a law might not be sufficient to bring about significant reforms.
According to constitutional expert Rajiv Dhawan, the power to make appointments passed to the judges following interpretations of judgements delivered in 1982 and 1993.
In the 1982 case, S.P. Gupta v. Union of India, a seven-judge bench laid down that the recommendation for an appointment made by the Chief Justice of the India is not to have primacy, though his recommendation can be turned down by the ruling politicians at the Centre only for “cogent reasons”.
In 1993, a nine-judge bench of the Supreme Court in Advocates on Record Association v. Union of India overturned the S.P. Gupta case to hold that what the Chief Justice of India and a collegium of senior judges recommends is final.
“Unless there is a constitutional amendment, it is difficult to take away that power of judiciary,” Dhawan said.
Union minister for law and justice M. Veerappa Moily has on several occasions emphasized the need for legal reforms, expressing concern over the growing backlog of court cases.
In September, Moily said a comprehensive Bill on judicial reforms would be moved during the winter session of Parliament.
“As per figures available for 30 June, 2009—there were a total of 52,592 cases pending before the Supreme Court, an aggregate of 4,017,956 cases pending before the high courts, and 27,119,092 cases pending before all the subordinate courts put together,” Chief Justice of India K. G. Balakrishnan said on 16 August this year.
The law minister’s attempt in August to introduce the Judges (Declaration of Assets and Liabilities) Bill, 2009, in the Rajya Sabha proved to be a major embarrassment when some members of the ruling party joined the Opposition and stalled its introduction.
The controversial Bill sought the declaration of judges’ assets without making them public and keeping the information out of the purview of the Right to Information (RTI) Act. Mint could not ascertain whether the proposed legislation will address this concern.
Interestingly, key people, both in the Opposition as well as the Congress, were unclear on about either the status or the details of the proposed legislation.
“I have no idea what is happening about the Bill,” said Congress spokesperson Jayanti Natrajan, who is also the chairperson of the parliamentary standing committee on personnel, public grievances and law and justice.
Similarly, Arun Jaitely, general secretary of the principal opposition Bharatiya Janata Party (BJP) and the leader of Opposition in the Rajya Sabha, besides being a lawyer, said, “The government is yet to discuss any such Bill with us. The Opposition is unaware of its details and it is too early to take a political position.”
Experts say that a lack of consensus among political parties may hinder the proposed legislation likely to be brought up in the coming session.
“I do not see any political will...This kind of Bill needs political consensus among various political parties and the lack of any effort to form a consensus shows the government does not have the political will to pass the Bill,” said Dhawan.
Manish Ranjan, Liz Mathew and Santosh K. Joy contributed to this story.