Union Law Minister Ramakant Khalap has pulled out the old chestnut yet again. The Judges Appointment Bill, which seeks to restore to the executive a decisive say in the appointment of judges, is to be presented in the next session of Parliament.The Bill was slated to be introduced last March, but at that juncture both the CPI(M) and the BJP had expressed their reservations over it. Khalap had then indicated that the government would go ahead with the Bill only after seeking wider consultations on it.Whether such consultations did indeed take place and a consensus arrived at is doubtful, yet the Centre seems determined to promote the flawed Bill. The matter assumes even more importance in view of the fact that of the 571 posts of Supreme Court and High Court judges in the country, 80 are lying vacant.The tensions between the executive and the judicial arms of the State are too well-known to need recounting. Article 124 of the Constitution states that judges of the Supreme Court will be appointed by the President after consultation with such of the judges of the Supreme and High Courts as he deems necessary. Similar provisions exist for the appointment of High Court judges. But what does such ``consultation'' imply? The Supreme Court judgment of October 1993 interpreted ``consultation'' with the Chief Justice as ``concurrence with the Chief Justice'', thus giving the judiciary a decisive say in judicial appointments. The present Bill is an attempt to restore primacy to the executive in the matter. These differences had surfaced even in the Constituent Assembly debates. B.R. Ambedkar had on one memorable occasion pointed out that the Chief Justice is, after all, only a man, liable to human failings and to give him the veto power on the appointment of judges is to ``transfer the authority to the Chief Justice which we are not prepared to vest in the President or the government of the day''. It was, according to him, a ``dangerous proposition''. Be that as it may, it could be equally well argued that giving the government of the day power over so sensitive an institution as the judiciary would be to subvert the cause of justice and the rule of law. This is all the more so since it is the executive that is often an interested party in numerous politically-sensitive cases.Given this reality, the most sensible way seems to be the one outlined in the 121st Report of the Law Commission of July 1987, which proposes a broad-based National Judicial Service Commission, with the Chief Justice as chairperson, to do the job. It would comprise senior Supreme and High Court judges, representatives from the Union Ministry of Law and Justice, the Attorney General of India, legal luminaries and experts from civil society. All the major political parties seem to have no objection to such an approach. In fact, the Union Law Minister has himself stated that the government is open to the idea. It makes sense then that the Centre, instead of wasting time presenting controversial Bills, gets down to the task of setting up such a Commission.
