By Sidhant Srivastav

Edited by Anandita Malhotra, Senior editor, The Indian Economist

In a major political victory for the Narendra Modi government, the Rajya Sabha passed the landmark National Judicial Appointments Commission Bill, 2014, which was unanimously cleared by the Lok Sabha. A day after its passage in the Lok Sabha, the Constitution Amendment Bill was cleared by the Rajya Sabha with 179 votes in favor and one abstention of noted lawyer Ram Jethmalani.

Under the statute amendment bill, Chief Justice of India will head the NJAC. Besides the CJI, the judiciary would be represented by two senior judges of the Supreme Court. Two eminent personalities and the law minister will be the other members of the proposed body.

The prominent people, one of whom will belong to either of SC/ST, OBC, minorities or a woman, will be selected by a panel of Prime Minister, Chief Justice of India and the leader of the opposition in the Lok Sabha or the leader of the largest opposition party in the Lower House. The bill will come into force after ratification by 50 per cent of the state legislatures. The process could take up to eight months. After ratification, the government will send it to the President for his assent.

The bill states that the commission will seek the views of the governor and chief minister of the state concerned in writing before appointing or transferring a judge of that high court.

One of the provisions of the bill which stated that if two members of the commission do not agree on a candidate, he or she will not be appointed. This was opposed by quite a few members who claimed that this would lead to a veto system.

Law Minister Ravi Shankar Prasad, however, allayed their fears, saying: “Two is a voice to be considered in case of dissent.”

“The process of consultation has been made more meaningful. A large section of people do not have representation in the judiciary as of now,” he said, adding that there should be a database of lawyers from the reserved categories.

“The need for a new law is not the thinking of only our government. It is a collective exercise which has been in the offing for the last 20 years,” he said.

Earlier, Congress leader Mallikarjun Kharge had asked the government to make a provision to make a representation of scheduled castes and scheduled tribes mandatory in the judicial commission.

Finance Minister Arun Jaitley said in the interest of the judiciary there should be an element of primacy in the institution of the judiciary.He said the process of appointments in judiciary today is not only by judicial primacy and has “virtually boiled down to a system of judicial exclusivity and the role of other institutions is almost negligible.”
Jaitley said the independence of the judiciary is part of the basic structure of the Constitution and it must be maintained, but an elected government is also part of the structure and questioned if it was not an aberration if its views are not considered.
“The balancing act is to let this power be collectively exercised,” he said so that best judges can be appointed to the higher judiciary.

“We are restoring the spirit of the Constitution… while maintaining the primacy of the judiciary,” he said.

“Today judges appoint judges and they will probably take the views of the Executive. There is only a marginal role of the consultation with the executive. There is hardly any role that the Governor and Chief Minister has and if the Executive has a contrarian view and there is strong reason for that contrarian view and it conveys to to the judiciary. It is considered as a view not taken,” he said.

Jaitley said since effectively today judges appoint judges and there is a marginal role of the executive, “the effort is now to restore back what is the spirit of the original Constitution” and have checks and balances in place.

About the National Judicial Appointments Commission, for which the Constitution is being amended, he said it has the predominant strength of the judiciary with three of its six members being the judges and the panel being headed by the Chief Justice of India. The Executive, he said, is only represented by one person—the Law Minister.

K T S Tulsi, also a noted lawyer, said it has taken 24 years to restore the balance and the issue should not degenerate into a turf war. The question is not who appoints, the matter is about transparency. “Ultimately, the power of appointment of judges must vest in Parliament,” he said.

Sidhant graduated from IIT and discovered his creative bent of mind towards writing after having a near death accident, he had never thought of taking his writing to a professional level. He started blogging just last year, but got an amazing response to his blogs (http://ihavenothingelseto.blogspot.in), he then joined a fashion and lifestyle magazine as the sub editor. He is more than happy to contribute insightful articles on diversified topics to The Indian Economist. 

Posted by The Indian Economist | For the Curious Mind