Today on Aug 14 2014, the new Lok Sabha passed a historic constitutional amendment bill that would put an end to the controversial “Collegium” system of judicial appointments. It is expected to clear the Rajya Sabha too easily given that all parties including the Congress support it. Recent revelations by maverick Supreme Court Judge Markandey Katju seems to have lent a sense of urgency to this. The bill text is available at 121 Const Amendment Bill and NJAC Bill 2014

Here is my take on little discussed aspects of the bill.

Competing visions – why it is crucial

The biggest issue I have with the new commission is the presence of two “eminent” persons. But first let me explain the background situation.

Here are three axes you can plot a candidate on. For example : Incompetent and Corrupt with a Wrong vision would be the least desirable.

Corrupt vs Honest

Meritorious vs Incompetent

Right Vision vs Wrong Vision

The first two are qualities we can all agree on ; although there is severe pressure to weight merit downwards using sectarian considerations. This leads to the explicit quota for SC/ST/OBC/Minority/Women for the one slot which would deny a more meritorious candidate not in these categories.

The third one regarding vision is extremely important and something that needs more elaboration. Perhaps I should call it “Idea of India Vision” vs “Rule of Law Vision” instead. You can have an extremely competent and honest candidate such as Gopal Subraminum but who are committed to an ideology that is ultimately hurtful. I think a lot of folks agree that over the decades the doctrinal development of our judiciary has led to the following situation.

Court generally steps aside on fundamental rights issues by adopting a very low “baby rational basis” standard of scrutiny. A positivist legal system is encouraged. This means that whatever the state decrees is law and there can be no moral or immoral, logical or rational arguments. This is borne out by the fact that there has been no major confrontation between the court and the executive in the last three decades. The governance trend in the last decade is towards an expansive positive rights regime. Various Right to XYZ are pass scrutiny easily – even if they impinge on fundamental rights. But as with any regime of positive rights (like the USSR) the state can deny these to any class of citizens at will. This is evidenced by the unanimous constitution bench judgment in Pramati vs Union of India (the Right to Education case) Having waived its right to a stricter level of scrutiny, the courts job now is much more mundane. It counts on a system of PIL (Public Interest Litigation) to make the machine go. Through these PILs, they are now left to decide bone-on-bone interactions and anomalies brought to it by injured parties from these positive rights programmes. The best illustration is the flood of Delhi Nursery Admissions cases in both the Delhi HC and the Supreme Court. Striking down the original regulation by Jung would have been the alternate route. This status quo has extraordinarily weak support in the constitution. It is largely brought about by a culture of activism and requires a particular intellectual environment and media co-operation to thrive. This status quo in my view is undesirable. It doesn’t matter if the judges are selected via the collegium or by the new NJAC. You are likely to have the opposite view and that is okay. I would support a system that has a better chance of turning the tables on the status quo. A constant threat to the status quo even today is a couple of mutant “first principles” judges can upset the applecart. Even judges who are not necessarily articulate but who rule on simple principles can cause a lot of grief to this climate. See my post on Justice Altamas Kabir whose NEET judgment caused quite a rumble – although it was the correct one. It is within the realm of possibility that the two eminent people will K.O any such threat to the grand positive rights driven sectarian state by filtering mutants upfront. Just the presence of these two folks might act as a strong pull to junior judges and advocates who harbor career prospects to fall in line.

The two eminent people who together can veto any appointment is a loaded gun. As per the law passed yesterday they are not accountable to anyone. The 121st Constitution Amendment Bill does not prescribe any qualifications for these people either.

Symmetry

Right leaning people should realize that while it is true that you and I can contest any appointment to these eminent people slots. But the activist / NGO complex is far more organized, better resourced, politically connected, and more importantly media savvy than we will ever be. So their favourites are going to be hard to resist and ours hard to appoint. Suddenly you have no symmetry – what was 1:1 in the collegium (both us and activists locked out) is now 1:1000. A majority of appointments to these kind of NAC civil society bodies have been contested all the way to the Supreme Court. The SC even rejected the first batch of civil guys and girls to the NCPCR (NAC inspired Child Rights Watchdog). It was not due to any principled stand on transparency but due to Delhi NGOs and activists fighting among themselves through PILs.

The quota

I am also not shy to talk about the other issue. The new quota baked into the constitution that one eminent person belong to the SC/ST/OBC/Minorities/Women is poorly drafted and sure to cause endless strife. Here are my objections.

There is no support for reservation for women and non-Hindus in the constitution . This is downright atrocious and bound to cascade into all other quotas as well.

. This is downright atrocious and bound to cascade into all other quotas as well. The text is not clear – the constitution says ONE eminent person must be from the selected communities/gender. But that is not very useful. Is it ATLEAST one eminent or EXACTLY one eminent from these groups ?

This kind of precision is very important because you avoid months and crores in fees of litigation later.

How it is to be distributed ? If it is by rotation – what is the order ? This resembles the roster point system.

Say you select the most eminent legal mind Fali Nariman – does he fall into the minority category or due to his scholarship take the open slot. If he takes the open slot ; does it not lock out other Hindu Unreserved Males such as Gopal Subramanium unfairly ?

Does the women slot just favour women or those women who explicitly fight for women ?

? Say an open category slot opens up after X years? Will everyone including women be considered for that slot ? We have learnt nothing from decades of hairy litigation on these kinds of issues in public appointments.

There are other issues such as vetos. One is not sure if the two eminent persons are appointed by consensus or by simple majority. Both have major issues

If it is by consensus – then Mallikarjun Kharge can stonewall and force an average middle of the road candidate instead of a brilliant principled judge.

If it is by simple majority – then opposition has no voice. Modi and Lodha can agree on eminent persons and push it through. This was seen in Lokpal, CVC appointments where BJP’s Sushma Swaraj was humiliated.

As I was typing this up – it seems like Fali Nariman is going to challenge the act and amendment. We shall see what happens in the days ahead.