Internal problems in the law ministry may prevent the Union cabinet today from discussing the issue of ensuring government role in appointment of judges, despite the item being listed on the agenda.
There is a fight on between law secretary P K Aggrawal and home secretary K Padmanabhaiah over who should have a say in the judicial commission in case the government opted for this option for increasing its say in judges appointment. Though law minister Ramakant Khalap has called a meeting of the two secretaries today morning to sort out the differences, a senior official said the two may not be able to resolve their differences in one meeting.
According to a senior official, justice department of the law ministry has objected to the legal departments exclusive right to prepare and send the cabinet note on judges appointment. While the law secretary heads the legal department, it is the home secretary who heads the justice department in his capacity as home secretary.
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The official said that since the chances of the government opting for the setting up of a judicial commission to have its say in the appointment of judges is brighter than the possibility of amending Article 124 of the Constitution, the department that moves the cabinet note will have representation in the proposed commission.
Given this, the justice department, which now processes judges appointment, will have to surrender its rights to the legal department, especially when the real power shifts to the government. The justice department has argued that it has always been taking the legal department into confidence and has been informing it of judges appointment. It feels that the legal department should at least have the courtesy to take the opinion of the justice department on the cabinet note, which has already been sent by the ministry to the cabinet secretariat.
The cabinet note has given both the options for consideration of the cabinet. A constitutional amendment would require two thirds majority in Parliament and also ratification by state legislatures. But the setting up of a judicial commission would be easier to sail through.
While the Congress and most of the United Front partners are in favour of government having its say in judges appointment, the BJP is opposed to amendment of Article 124. However, it has promised in its election manifesto that it would set up a judicial commission for appointment of judges.
The problem for the government here could be not the BJP but the CPI, which yesterday opposed the move.
The issue was briefly raised at the steering committee of the United Front on February 9, when a senior UF leader favoured the setting up of judicial commission.
Until 1993, it was the executive that was appointing judges, in consultation with a panel of judges including the Chief Justice of India and two other senior judges. The cabinet used to recommend names to the President, who in turn used to make the appointments.
This practice changed after 1993 when a full bench of Supreme Court interpreted the term in consultation with to mean in concurrence with senior judges. Ever since, the legislature has completely abdicated its powers to the judiciary in the appointment of judges. Now the process is initiated by the Chief Justice of India who, in consultation with his two seniormost colleagues, recommends names to the President for formal appointment.
The history of judges appointment in the country is dotted with occasional but major controversies. Former prime minister Indira Gandhi was accused by a section of public opinion for packing of benches with `secularistic and socialistic people.
While some feel seniority should be the sole criteria for a judge to become the Chief Justice of India, others feel other factors also should be taken into account, otherwise there would be Chief Justices appointed for very short periods.
Before Emergency twice there was supersession in appointment of Chief Justice. The first one was at the time of bank nationalisation, and the second during emergency when justice H R Khanna was superseded. He later resigned his job.
While the Constitution talks of appointment of judges by the government but in consultation with the judges, in practice it has been either imposition of the governments will or imposition of the will of the judges (post 1993), said an official.
Prior to 1993, there was a consensus that consultation does not mean concurrence. But in 1993 there was a policy somersault.
In Subhas Sharma vs Union of India the Supreme Court took the view that this majority view should be considered by a larger constitution bench. A bench of nine judges was constituted to examine this issue. Seven out of nine of this bench decided that consultation meant concurrent or consent. Ever since the practice is that the Chief Justice initiates the process, and the understanding is that in case of dispute over names his views should prevail.