The Rajya Sabha on Thursday passed a Constitution amendment Bill paving the way for setting of a Judicial Appointments Commission to replace the collegium system for appointment of judges of Supreme Courts and High Courts.
The BJP and its allies staged a walkout demanding that the Bill be referred to a Parliamentary Standing Committee. The Bill was passed by 131 votes in support while one member opposed it.
However, a second Bill — the Judicial Appointments Commission Bill, 2013 — which details the panel’s composition, functions and procedure to be followed for appointments of judges of the SC and High Courts has been referred to the Standing Committee for wider consultations.
The Government was also successful in getting passed the amended land Acquisition Bill by the lok Sabha. The land Bill legislation was on Wednesday passed by the Rajya Sabha. The Bill was later taken up in the lower House for approval of the new amendments, which include dilution of retrospective clause with regard to acquisition of land for irrigation projects.
While being fully committed to the Constitution Amendment Bill related to judicial appointment, the BJP said the Bill must be referred to the Standing Committee for wider consultation so that bar councils, bar associations, retired judges and other stakeholders could give their views.
leader of Opposition Arun Jaitley said that the “piecemeal” approach of the Government was not practical as passage of the ConstitutionalAmendment would create a Constitutional hiatus if the collegium system was repealed without a new mechanism in place.
He said the Standing Committee could complete its work before the Winter Session and his party would support and ensure passage of both the Bills simultaneously on the very first day of the next Session.
Jaitley said that wider consultations with stakeholders will help the Standing Committee to explore all options, including that the one given by legal luminary Ram Jethmalani that JAC's composition be reflected in the Constitution Amendment Bill for it to pass legal scrutiny.
However, Sibal rejected Jaitley's apprehension about a Constitutional hiatus and said since the Constitution Amendment Bill would require ratification by at least 50 per cent States it should be passed now. He assured that the Government will not send it for Presidential approval till the JAC Bill is passed in Parliament. Rejecting Jethmalani's argument that the Bill would change the basic structure of the Constitution and an attack on judicial independence, Sibal said that appointments by executive and independence of judiciary are two separate issues.
He said the Bill will not interfere in independence of judiciary, but improve its functioning. There is no time to seek adjournment now as the lawmakers have been trying to improve the system for past 20 years, he said.
Since the Minister refused to agree to the BJP's proposal, M Venkaiah Naidu said that there appears to be a hidden agenda behind such hurry in passing the Bill so BJP will not be party to it.
Earlier participating in the debate on the Bill, members cutting across party lines were united in criticising the growing corruption in judiciary, nepotism and favouritism in judicial appointments and judiciary's growing interference in the executive domain. Everyone, except Jethmalani, supported scrapping the collegium system of appointments, introduced since 1993, as it lacked transparency and accountability. Sibal said that the collegium system disturbed the delicate balance between the Judiciary, the legislature and the Executive to which Jaitley and others agreed.
Jaitley sought re-establishment of the "separation of powers". saying judiciary cannot step in to perform duties of the executive. Referring to the oft repeated argument that since the executive is not performing its functions, the courts have to step in, Jaitley said the same argument can be used to question the role of judiciary. With more than three crore cases pending in various courts, should somebody perform these duties, he wondered.
The BJP leader quipped while the apex court's judgement is final and even god cannot correct judgements and advised restraint as far as judicial activism is concerned. He said the three-member collegium often ignores the best judges for promotion and go ahead with their own favourites. He also questioned the practice of post-retirement positions to judges and said this influenced their pre-retirement judgements. He also wanted a system of accountability for judges to be incorporated in the Bill.
Minister of State for Parliamentary Affairs Rajiv Shukla quoted many former judges who admitted that all was not well with collegium system as it was not sending good quality judges to the Supreme Court. He said corruption and nepotism was growing within judiciary, large number of cases are pending and getting justice has become very costly as lawyers charge exorbitant price.
He was supported by BSP leader Satish Chandra Mishra, who highlighted the large number of vacancies in various High Courts and the collegium system not sending names of judges from Scheduled Castes and women for promotion to higher judiciary. SP leader Ram Gopal Verma said that when government's authority is reduced, judiciary becomes powerful and start interfering in executive work.
BJP leader Ravi Shanker Prasad said that the moral authority of judiciary has to be respected but transparent system of appointment of judges have be introduced. He also called for referring the Bill to the Standing Committee for wider consultation.