September 5, 2013
Sukhendu Sekhar Roy speaks on The Constitution Bill, 2013
Mr. Deputy Chairman, Sir, I am grateful to you for giving me the chance to speak on the vital Bill, i.e., the Constitution (One Hundred and Twentieth Amendment) Bill, 2013. Sir, our Party, the All India Trinamool Congress and our leader, Miss. Mamata Banerjee, has full faith in Judiciary. We believe in the independence of the Judiciary, and the powers of judicial review because we know that the Judiciary in our country, by delivering landmark judgements in plethora of cases, right from Keshva Nand Bharti Case to 2G Case, over the decades, have reaffirmed justice, social, economic and political as enshrined in the Preamble to the Constitution of India.
Sir, my Party, the All India Trinamool Congress does not believe in a committed Judiciary. A committed Judiciary was advocated by the so-called Young Turks in the era notoriously known as Emergency period. We all know what happened in 1973 when the Judiciary was made to measure. Three of the senior judges were superseded by a puisne judge in the Supreme Court to give shape to the philosophy of committed Judiciary. But, Sir, gone are the days. Things have undergone a sea change since then. But due to abject failure on the part of the Executive and the inaction on the part of the Legislature, the so-called judicial activism has surfaced and at times the so-called judicial activism has turned to be judicial excess.
Sir, moreover, irregularities and nepotism, if not other corrupt practices, are being perpetrated on a regular basis in the matter of appointment of judges in the High Courts and Supreme Court.
Nowhere in the world, as I know, such a system of collegium exists whereby the Judges appoint Judges based on the pick and choose formula as per their whims and fancies. Majority of the advanced countries though guarantee independence of judiciary, the appointment of Judges and other service conditions are guided by such a mechanism which ensures transparency and accountability. In India, unfortunately, we are lacking that. Sir, take the example of Switzerland. In Switzerland all the political parties have a voice in the appointment of Judges. We do not want to seek that power for the political parties. But in Switzerland the Members of the Federal Court are appointed by the Swiss Federal Assembly. Even the Constitution of Nepal provides for a Judicial Commission. For the past twenty years we are discussing and debating. We have not come to finality; we have not come to a conclusion as yet. Even today we are a divided house. Ultimately, the country will lose; ultimately, this is a burden on the common man who is seeking justice. We are not thinking of them. They are knocking the doors of the judiciary. For decades together they are not getting justice. We are discussing and debating without coming to any conclusion. This is why I think that this is the need of the hour that this Constitutional (Amendment) Bill is passed and supported by each and one Member of this House. Sir, all the time the politicians seem to be the sacrificial goats and others are holy cows, nobody can touch them. We have not forgotten the maxim which is even today prevalent in England, UK, that ‘King can do no wrong’. In India, the Judges can do no wrong. They have adopted that maxim for them. They think that they are law unto themselves and they do and undo anything they want because only impeachment is there, nothing else. How the impeachment is directed against them all of us know which we need not discuss elaborately. So, taking the advantage of the umbrella of impeachment, they are exercising their powers sometimes in a way transgressing into the jurisdiction of the Executive and the Legislature. This is why this Constitutional (Amendment) Bill is very much necessary. Many hon. Members have spoken about the balance of separation of power and it must not be disturbed. Yes, the founding fathers of our Constitution introduced the separation of power, balance of power among the three pillars of our liberal democracy. Now a time has come that we have a very serious view as to whether these three pillars are still intact with their powers and jurisdiction or not. In the matter of appointment of Judges, we need not say anything about how the Judges are appointed. Very recently we know about the case of one hon. Chief Justice of a particular High Court. His letter addressed to the hon. President of India, his letter addressed to the Chief Justice of India, to the hon. Prime Minister of India has been leaked in the Press and we all know the contents of the letter. There the Chief Justice of that hon. High Court has categorically stated – no politician has alleged – that it is the Chief Justice of a High Court who is alleging that ‘my candidature for a Judge of the Supreme Court was not considered only because when I was in the Collegium of the High Court, I raised an objection against the appointment of a particular close relation of the present Chief Justice of India’. introduced the separation of power, balance of power among the three pillars of our liberal democracy. Now a time has come that we have a very serious view as to whether these three pillars are still intact with their powers and jurisdiction or not. In the matter of appointment of Judges, we need not say anything about how the Judges are appointed. Very recently we know about the case of one hon. Chief Justice of a particular High Court. His letter addressed to the hon. President of India, his letter addressed to the Chief Justice of India, to the hon. Prime Minister of India has been leaked in the Press and we all know the contents of the letter. There the Chief Justice of that hon. High Court has categorically stated – no politician has alleged – that it is the Chief Justice of a High Court who is alleging that ‘my candidature for a Judge of the Supreme Court was not considered only because when I was in the Collegium of the High Court, I raised an objection against the appointment of a particular close relation of the present Chief Justice of India’.
Not present Chief Justice of India, I mean, a former Chief Justice of India. Only because he, being a member of the Collegium, had raised objections, on valid grounds, against the appointment of a close relative of the erstwhile Chief Justice of India, his candidature was not considered. Till today, he is moving around without any result, trying in wilderness. This is the situation that our judicial system is having today. Shame on the part of Judiciary! It is a shame on the part of our Judiciary that such things are being continued. The hon. Leader of the Opposition has said that the Constitution provides for consultation and he has given a very wider meaning of consultation and has appealed that its dictionary meaning should not be taken care of. I am sorry, with all respect to him, I disagree with him. I stand corrected. ‘Consultation’ must not be construed as ‘concurrence’. ‘Consultation’ cannot be ‘concurrence’. Had it been so, there would have been the word ‘concurrence’ in the Constitution, not the word ‘consultation’. As compared to our forefathers, who drafted the Constitution, we are pigmies. They visualized everything. They discussed everything in detail. And, ultimately, they chose the selected words at the right place. Therefore, ‘consultation’ cannot be construed as ‘concurrence’. The nicety of our liberal democracy is that we are having checks and balances in our system. And, taking a cue from that principle of checks and balances, the Law Commission, while considering the Amendment in the present form, in its 214th Report, submitted in the year 2008, said that the Indian Constitution provides a beautiful system of checks and balances under Articles 142(2) and 270(1) for the appointment of Judges of the Supreme Court and the High Courts, where both, the Executive and the Judiciary, have been given a balanced role.
This balance has been upset by the second Judge’s case and the original balance of power needs to be restored. The original balance of power needs to be restored and this Constitution (Amendment) Bill seeks to restore that balance. The law may be passed. Restoring the primacy of the Chief Justice of India and the power of the Executive to make the appointments, the amended procedure would be based on the principle of accountability and focus on the key factors, like, transparency, fairness, objectivity and equal opportunity. So, in order to ensure transparency, fairness, objectivity and equal opportunity, we need assistance which has been proposed in the other Bill, which we will discuss some other day, as the hon. Law Minister has stated. Therefore, this is the need of the Hour.
Okay, Sir. I am concluding. Neither the Judiciary nor the Legislature nor the Executive enjoys any temporal power. All powers have been derived from the Constitution. This question was raised again and again as to which one is supreme — Parliament or the Judiciary. As a student of political science and law, there is no iota of doubt in my mind that Constitution is the supreme. The Executive, the Judiciary and the Legislature have to abide by the tenets of the Constitution without which our democracy cannot usher in a new era. What are we leaving for our next generation? A corrupt judiciary, a corrupt system! Son of a judge will be appointed, daughter of a judge will be appointed, close relatives of the judge will be appointed, even the Chamber juniors of the judge will be appointed as judges. No matter he or she has the quality or not. Therefore, I agree with the Leader of the Opposition that there should be some eligibility criterion, objective eligibility criterion for appointment of judges. There should be no pick and choose. Therefore, Sir, on behalf of my party, I fully support this Constitutional (Amendment) Bill. Thank you.
