The Government has described the Supreme Court’s (SC) decision quashing the NJAC Act and the related Constitutional Amendment as a “setback to parliamentary sovereignty” while the country’s top law officer Attorney General (AG) Mukul Rohatgi termed the judgement as “flawed.”
“According to me the verdict is flawed. The verdict has ignored the unanimous view of Parliament and the will of more than half the State legislatures,” Rohatgi said.
While the Congress reacted cautiously saying that the collegium system which will now be restored is “shrouded in secrecy”, the Aam Aadmi Party (AAP) hailed the verdict terming it as a “great blow” to the NDA Government. left parties, however, toed the Centre’s line and made a strong pitch for having a NJAC for appointment of judges.
Union Minister Ravi Shankar Prasad, who had piloted the NJAC Bill in Parliament as the law Minister, said the order had raised questions over the sovereignty of Parliament, which had unanimously passed the legislation that also received ratification from 20 State Assemblies.
“While holding very dear the principle of independence of judiciary, I regret to say that parliamentary sovereignty has received a setback today... Questions have been raised on parliamentary sovereignty,” Prasad told a Press conference. He indicated that the Government will decide its future course of action after reading the 1,030-page judgement and consultations.
Highlighting the backing the Bill enjoyed, he said it was a “unique moment in Indian polity” when all political formations supported the setting up of the NJAC to replace the 22-year-old collegium system, which has now been revived by the SC.
Noting that the Executive had a greater role in appointing judges before 1993 when
the collegium system was introduced, the Minister raised a poser, asking if the judges appointed during that era lacked in any way as he cited the names of some of the finest judges, including MN Venkatachaliah and VR Krishna Iyer, appointed under that system.
As Prasad outlined the Government’s disagreement with the SC’s order, he insisted that the Centre did not want any confrontation with the judiciary and judicial independence was an article of faith for it.
Noting that the court has sought the Government’s opinion on improving the collegium system, Prasad argued that “it meant it wasn’t correct in the first place.” Prasad also said the NJAC Act was part of judicial reforms in the country and had been envisaged by a host of bodies.
“It did not happen all of a sudden. The Constitution Review Commission, the Administrative Reforms Commission and Parliamentary standing committees in three of their reports had recommended such a law,” he said.
He noted that the principal author of the 1993 SC judgement which led to the collegium system, Justice JS Verma had also suggested a serious rethink on the collegium system and so had Justice VR Krishna Iyer.
Parliamentary Affairs Minister M Venkaiah Naidu said there was a unanimous support for the Bills in the lok Sabha and the Rajya Sabha during voting. “Twenty State Assemblies had ratified it...The principal author of the 1993 SC judgement (which led to the collegium system) (late) Justice JS Verma had also suggested a serious rethink on the collegium system and so had Justice V R Krishna Iyer,” Prasad said.
Naidu said the will of the people was brought before the court noting that the lok Sabha and Rajya Sabha had supported the Bill besides 20 State legislatures had also ratified the constitutional Amendment.
law Minister DV Sadananda Gowda said the will of the people can be represented through the Parliament, through the legislature only and it cannot be brought to the notice of the whole world by some other means. “We are surprised by the verdict”, he told reporters in Bengaluru.
The Attorney General ruled out the option of seeking review in the matter saying: “I don’t think it is a case for review at all as the verdict is detailed and runs into over a thousand pages.”
“According to me the verdict is flawed. The verdict has ignored the unanimous view of Parliament and the will of more than half the State legislatures,” Rohatgi said.
In a cautions response, the Congress noted that the Constitution Bench “has itself recognized” the shortcomings in the process of appointment of judges to higher judiciary while directing to hear arguments on issue of ensuring transparency, accountability and responsibility of collegium system, and said that the need was to “look forward”.
Congress’ chief spokesman Randeep Surjewala said that it is also “true” that the existing collegium system is “shrouded in secrecy and over-confidentiality.” “Discretion to appoint judges must be based on objective and not subjective criteria. Transparency, accountability and responsibility of collegium system is must and has been under question”, he said.
Surjewala used the verdict to target the Narendra Modi Government saying the judgement implicitly reflected “lack of confidence” in the Government which has “eroded” institutional autonomy and constitutional safeguards over the last 17 months.
Former law Minister of the UPA Government Ashwani Kumar termed it a “watershed moment” and said conflict or distrust between judiciary and legislature should be avoided, while another former law Minister Veerappa Moily attacked the Government for its “recluse approach” and its handling of the issue to “dent” the independence of the judiciary saying, “what the Government has said inside and outside the court has hurt the soul of the judiciary”.
AAP said the SC verdict holding the NJAC as unconstitutional has established that the judiciary is “paramount” and termed it as a “great blow” to the NDA Government. However, the party also called for reforms and greater transparency in the 22-year-old collegium system of judges appointing judges in the higher judiciary. AAP leader Ashutosh said the Centre’s “haste” in bringing the NJAC Act had sown seeds of doubt about its intentions with respect to the judiciary.
While CPI leader D Raja advocated for having a National Judicial Commission, CPI (M) said the collegium of judges is not a democratic process even as it maintained “any process which gives the Executive the opportunity to determine the selection of judges is detrimental to the integrity and independence of the judiciary.”