Parliament nod to Constitution Amendment Bill to set up judicial commission

New Delhi, Aug 14: Parliament today cleared a Constitution amendment bill that will facilitate setting up of a commission for appointment of judges, replacing the 20-year-old collegium system which has been under severe criticism. A day after passage in the Lok Sabha, the Constitution Amendment Bill was cleared by the Rajya Sabha with 179 votes in favour and one abstention of noted lawyer Ram Jethmalani.

The bill will make way for the setting up of National Judicial Appointments Commission which will appoint and transfer judges to the Supreme Courts and the 24 High Courts. 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. With the passage of the bill, the collegium system of judges choosing judges is set to be changed in the coming months. The Constitution amendment bill will grant Constitutional status to the NJAC and its composition.

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 persons, 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.

Moving the Bill, Law Minister Ravi Shankar Prasad said the measure is not being brought in haste as there have been several committees in the past that have recommended for bringing a change in the collegium system of appointing judges. ”Why is Parliament wary of using its powers? Parliament must have full trust in the ability of Parliament to pass the law,” he said. Prasad said the power of appointing a judge rests with the President of India. “This House respects the independence of the judiciary and this House also respects the power of Parliament,” he said.

On doubts of some members on the appointment of eminent persons on the all-important Judicial Appointments Committee, he said, they will be appointed by the Prime Minister, the Chief Justice of India and the leader of the opposition or largest opposition party in the Lok Sabha. ”Should we not trust their collective wisdom. If they can govern the country well, they can select eminent persons as well,” he said. Finance Minister Arun Jaitley said in the interest of judiciary there should be an element of primacy in the institution of 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 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 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.

Suspended BJP member Ram Jethmalani, himself an eminent lawyer, said the Law Minister should not be a member of the National Judicial Appointments Commission as he may have to practice sometime and hence the government should be represented by either the Prime Minister or the Home Minister. ”Law Minister is most disqualified person to be the member of this Commission. He cannot be trusted to have that kind of moral courage,” he said. He also dismissed the government’s proposed Commission as a “pale shadow” of what it was envisioned and wanted that this body should have the power to dismiss judges and accuse the government of “betrayal” on this issue.

He also had a dig at the Law Minister saying he has not studied the Judicial Commissions of various countries like that in South Africa, New Zealand and Australia, which are more robust. Prasad later contested this charge saying it is a “disrespect” to him. Jethmalani said it is a “slur” on the entire attempt to set up a Judicial Commission and demanded representation of the Bar Council in the NJAC, saying they know who is honest and corrupt. He also sought representation of civil society and labour unions in the Commission.
Jethmalani also saw a “deliberate error” in the Chair not allowing him to speak for more time.

K T S Tulsi (Ind), 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. Earlier, participating in the resumed debate on the bill, Sharad Yadav (JD-U) rued that the judicial system was devoid of participation from 80-85 per cent of the population.

“In the 68 years of Independence, there have been 52 Chief Justices of India but there was none from backward class, only two were from Scheduled Caste and one from Scheduled Tribe, besides five from Muslim category,” he said. He said these categories were neglected to the extent that out of 145 former judges of Supreme Court, there was none from BC, SC or ST categories while the number of Muslims was 9. Also, among 146 former judges of the High Court, the number of judges from BC, SC and ST communities was nil while representation from Muslims was 9, he said.

Altogether there were 343 judges with only 2 from SC category, one from ST and 24 from Muslim, he said. Stressing that a six-member body for appointment of judges to the Supreme Court and the High Courts would not be able to deliver justice to 120 crore of population, he said though he was against collegium system and in favour of amendment but such a system should be brought in place which could remove social disparity.

Navaneethakrishnan (AIADMK) supported the amendment saying a similar State Judicial Appointments Commission should be created for state level appointment of judges. He said Tamil Nadu Chief Minister Jayalalithaa had also written in this regard to the Centre. P Rajeeve (CPI-M) accused the Finance Minister of diluting his earlier stand on the judicial appointment reform issue saying as Leader of the Opposition Arun Jaitley had talked about fixing accountability on judges as well and asked him what are the reasons that he “changed the stand” on it.

He demanded that out of the six members of the NJAC, one should be woman. D Raja (CPI) said judiciary should represent the social diversity of the country and should have representations from all sections. H K Dua (Nom) said as the executive had crossed its boundaries during Emergency in 1977, the judiciary crossed its limits when it decided in 1993 that judges will appoint judges.
T Siva (DMK) wanted to know the definition of eminent persons, who are to be made NJAC members.

Rajiv Shukla (Cong) said BJP had opposed the same bill when it was brought six months back and told the Law Minister that had he supported it then, he would have been sitting in the panel to select judges. K Keshav Rao (TRS) stressed on the need for accountability of judiciary. EMS Natchiappan (Cong) referred to Jain Hawala case to accuse the judiciary of high-handedness. Ramdas Athavale (RPI-A) said members belonging to SC/ST and minorities besides women should be given representation in the NJAC. Naresh Gujral (SAD) questioned the integrity of many judges appointed in past. Mayawati (BSP) demanded reservation for SC/ST/OBC and religious minorities in the judiciary and said they should be given representation proportionate to their population.