Harihar Swarup
A landmark achievement of the first budget session of the Narendra Modi Government was passage of the National Judicial Appointments Commission Bill and related Constitution Amendment Bill to support it. A rare unanimity was seen in approval of the measure as the Opposition, mainly the Congress, sided with the Government in ensuring that NJAC bill was carried through. But for the Congress support, the Government would have found it difficult to push the judges appointment bill which had been debated for 24 odd years. Government had, however, to concede to the Congress demand for sending the Insurance Bill to a Select Committee. The bill seeks to raise the ceiling on foreign direct investment in the sector to 49 per cent from the existing 26 per cent.
The NJAC Bill paves the way for scrapping the collegium system of appointments to the higher judiciary. The measure will enable the setting up of a National Judicial Appointments Commission to appoint and transfer judges to the Supreme Court and 24 High Courts. Once the bills become law, Government will have say in the selection of Supreme Court and High Court Judges. The collegium system of “judges appointing judges” will be replaced by a six-member commission. It will be headed by the Chief Justice of India and comprise two senior Supreme Court Judges, the Law Minister and two eminent persons to be selected by a group comprising the Prime Minister, leader of the opposition in the Lok Sabha and the Chief Justice.
However, it is not clear, what would be criterion for selection of these two eminent persons. It is also not clear whether they will be appointed by consensus or majority.
The NJAC, meant to revamp the appointment of judges and end 20-year-old collegium system, may have been cleared by Parliament but could it face the test of the Supreme Court? As, a jurist puts it: “The collegium is dead! But will the new law pass the test of the Supreme Court?” Former Union Law Minister Kapil Sibal and eminent jurist Fali Nariman have decided to challenge the Constitutionality of proposed new set-up. Sibal said he has decided to challenge the Constitution (121st Amendment) Bill and the National Judicial Appointments Commission Bill.
According to Sibal, the main problem with the Bill was that it infringed upon the independence of judiciary. This Bill allows two members of the proposed NJAC to scuttle the appointment of an individual. “How can you give veto power to any of the two members of the NJAC? Such provisions can be misused”, he feared.
Fali Nariman, who was among the experts, consulted by Law Minister Ravi Shankar Prasad, said he was not happy with the composition of NJAC which will have only three judges out of six members. The fact, that it gives veto power to any of the two members to scuttle any recommendation made by a majority, is not acceptable. Chief Justice, R M Lodha, too has already come down heavily on those criticizing the collegium system.
A PIL has already been filed in the Supreme Court seeking to quash the Constitutional Amendment Bill and the National Judicial Appointment Commission Bill. Senior Supreme Court advocate P P Rao expressed the view that the “the Bill is an exercise for the Executive to get a handle on judicial appointments. This is part of the party in power’s attempt to politicize constitutional offices. We cannot afford to have politics in court. The judicial collegium has its defects, but this bill is not the solution”. Rao also questioned the “concept” of having two eminent persons as members of the commission.
Another senior advocate Anil Dhavan felt the Government “hurried too much, leaving weak spots in the bill”. But former Chief Justice V N Khare, who was part of the high-level consultations held on this bill, said there was no such requirement of taking an “advisory opinion” from the judiciary.
Another senior advocate Raju Ramachandran agreed saying that “it is not the job of the judiciary to advice the Legislature on how to draft a bill”. He said the Bill indeed saw long discussions leading to a consensus. The dialogue over judicial appointment law has been going on since last year. It was started by the previous Government and was renewed by the present one.
In the year 1992, the Supreme Court virtually rewrote the constitutional provisions which gave primacy to the Government in such appointments, obliging consultation with the judiciary but not more. By a rather extensive use of its powers of interpretation, the Court equated “in consultation” to “concurrence of” and thereby secured to itself the last word.
For 22 years, the heads of Indian judiciary have enjoyed a power which is unparalleled the world over-that of having the first and last word in determining who joins their rank. This has rankled successive Governments, who could do little since public opinion seemed to be in favour of trusting the court rather than political executive which had never got over the taint of wanting a committed judiciary from the days of Indira Gandhi. (IPA Service)
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