Born in December 1952 in Delhi, Late Shri Arun Jaitley was an eminent lawyer and Indian politician. Jaitley studied at the University of Delhi, where he completed his bachelor’s degree in commerce in 1973 and law in 1977. Jaitley entered in politics in 1974 and was also arrested in 1975 while participating in demonstrations against imposition of national emergency by the Indira Gandhi government. As a lawyer, Jaitley served as Addition Solicitor General of India in 1989-90. He also served the Cabinet as Minister of Law and Justice from 2000-2004 and Minister of Finance and Corporate Affairs from 2014-2019 among other cabinet positions. Jaitley was responsible for reformative steps like the introduction of Insolvency and Bankruptcy Code, 2016, merger of Railway budget with Central budget and introduction of the Goods and Services Tax (GST) regime.
Despite the criticisms around demonetization and implementation of the GST, Jaitley’s political career remained largely uncontroversial. Unfortunately, due to continuously deteriorating health since 2005 he passed away on 24th August 2019. He was awarded Padma Vibhushan, India’s second highest civilian award, posthumously. This editorial is tribute to the legal stalwart and the man behind politician. The major focus of this editorial is to highlight Jaitley’s idea of judicial appointments.
JAITLEY: The Politician
In an op-ed for the Indian Express, renowned historian Ramachandra Guha remarked that Arun Jaitley was BJP’s Manmohan Singh. Ram Guha has compared the similarities of like, Jaitley was admired as a professional before he entered into the Parliament, and so was Manmohan Singh. Both had friends across the political spectrum and both saw Rajya Sabha as their natural Parliamentary house. Ram Guha goes to the extent that he compares the corruption in Delhi and District Cricket Association under the leadership of Jaitley with the corruptions under the leadership of Manmohan Singh in the United Progressive Alliance (UPA) governments (2004-2014). According to Guha, Jaitley was a good man who found himself in a bad company.
Senior columnist and writer Tavleen Singh believes that the priorities of the current government changed dramatically after the premature death of Arun Jaitley. From the partial abrogation of 370 and the state of Kashmir valley after that to enactment of the Citizenship Amendment Act, 2019, Tavleen Singh believed that these failures were largely the consequence of premature death of Arun Jaitley. Jaitley was seen as the moderating voice of the government, a man who used to steer the boat towards real issues.
However, there is more to Arun Jaitley than politics. Jaitley had some thought provoking ideas ranging from finance to public law. One such thought provoking idea which Jaitley puts forward is his idea of the appointments in the higher judiciary. He authored an essay titled, The Judicial Collegium: Issues, Controversies and the Road Ahead (Appointment of Judges to the Supreme Court of India: Transparency, Accountability and Independence, Oxford University Press, 2016).
JAITLEY: The Lawyer
Jaitley believed that collegium system had to be replaced not because it produces inherently less worthy candidates but it allows less worth candidates to slip through. Two pernicious issues are present in the collegium system viz, firstly bargains are struck between members of the collegium which results in merit being disregarded and secondly, the relevance of seniority in elevations appears to be strategic or a requirement which can be overridden. Jaitley suggested a two-fold approach for appointments to higher judiciary. Appointments are not solely about who appoints but also about how appointments are made.
How to Appoint
The details related with the process must be in the public domain. The first step is to streamline the process of shortlisting candidates. This shortlisting must be done six months before the vacancy arises followed by a clearly laid-out consultative process (including members of the bar) and there must be a specified zone of consideration for High Court judges who are being considered for elevation. This step would rule out the opacity of the process and give clarity on the actual number of people who have been considered for elevation.
The second step is to lay down objective criteria for assessing merit and suitability of the candidate. The rationale for this step is embedded in the fact that the collegium presently follows a set of unwritten rules as a matter of convention. Interestingly, Mr Jaitley remarks that it may not be possible to lay down intricate details of the process, some objective factors can be laid-out.
There is also a need for some objective criteria for suitability as well as eligibility. For suitability, some suggestive criteria are – education qualifications, number of academic publications and lectures delivered, certain minimum number of cases argues or consideration of appearance records. These criteria would be indicative of the contribution of the candidate in the legal profession. Furthermore, Article 124 suggests a maximum age for appointment as a judge of the Supreme Court of India, but there is not minimum age limit, such minimum age criteria can be considered.
Jaitley believed that these steps in the ‘How to Appoint’ portion will ensure quality of judges as well as bring transparency into the process by making appointments on the basis of pre-determined criteria and not based on a set of unwritten conventional rules.
Jaitley’s idea of the ideal appointing body was not much different from the National Judicial Appointments Commission (NJAC). He believed that there must be harmonious balance in the composition of the appointing authority. There must be a few judges, executive officers as well as members of the public. The presence of executive was based on the rationale that they would provide information on the antecedents of potential appointees and presence of members of public was based on the reason that the ultimate consumers of justice must have a voice in the appointments process.
With respect to the judicial participation, Arun Jaitley believed that it is necessary to avoid situation which existed during emergency, however, he is silent on judicial primacy. At the same time, he leaves the idea open for interpretation when he asserts that there must be a ‘few judges’. In the opinion of the author, Jaitley has swiftly maintained a balance between his opinion and the opinion of the government, he was a part of.
Although the idea of NJAC being an ideal body is debatable and has been in public discourse since its inception, Jaitley’s vision of the ideal appointing body being very similar to NJAC stands on a very different pedestal given the procedural safeguards.
Arun Jaitley’s premature death was certainly a loss for India. Ram Guha remarked in 2016 that the present NDA government is the most anti-intellectual government India has ever witnessed, perhaps with the premature death of Arun Jaitley the remark is true today.
[Editor’s note- the purpose of this editorial is to pay tribute and remember the legal stalwart on his first death anniversary and make people aware of his conception of one of highly debated issues, the reform of the judicial collegium.]
Views are personal.
Image credits: Outlook India
ABOUT THE AUTHOR
Prakhar Raghuvanshi is currently pursuing law from National Law University Jodhpur and is a founding editor at ELS Review.