A day after the NDA government introduced the National Judicial Appointments Commission Bill, 2014, in the Lok Sabha, former Law Minister Kapil Sibal said on Tuesday that there are “serious problems” with the Bill, and the courts would certainly be called upon to look at its “constitutionality”.
Breaking his silence on the issue, Sibal told The Indian Express, “I don’t want to comment on the specific provisions of the Bill that this government has introduced. But I do believe there are serious problems with it. I firmly believe that any system that you put in place — whether you look at the system prior to the 1993 judgment (Advocates on record versus Union of India which ushered in the collegium system) or the system that came after the judgment — only works well if those who are charged with the responsibility of making it work do their jobs properly. Otherwise, any system is bound to fail.”
The senior lawyer, who earlier appeared in the second judges’ case that established the collegium system, said, “The judiciary would be called upon to look at the entire legislation, clause by clause, see if it meets the criteria of independence of the judiciary, the foundation stone of a vibrant democracy. This, I believe, is a basic feature of the Constitution. A judicial determination will have to be made on this issue.”
Asked to spell out the problem areas in the Bill, Sibal said, “The main issue relates to independence of the 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 two members of the NJAC? Such a provision can be misused. Then there is the matter of unanimous reiteration if the President refers the names back for recommendation. Just one member can, through his veto, veto any appointment. The Executive may, through this veto power, reject names till it gets an appointment of its choice.”
Sibal clarified that he was speaking as a lawyer and citizen of the country, and not as a Congress leader. He added that he wasn’t sure if members of the proposed body would have the time to look into selections and transfers of high court judges.
Asked if this Bill wasn’t similar to the one that he, as Law Minister, wanted to get passed, he replied, “Where was the veto in my Bill? You can’t be so casual while dealing with the institution of judiciary. Serious thinking needs to be done in such matters. I wonder why the government is in such a hurry to rush and get the Bill passed?”
Asked how the problems in selections to higher judiciary could be resolved, he said, “To begin with, the judiciary should amend the memorandum of procedure. Thereafter, other steps can be taken.”
Meanwhile, isolated over the Bill, the Congress on Tuesday appeared to have reworked its strategy. The party, which wanted wider consultations, has decided to move amendments to the Bill in the Rajya Sabha, hoping to score a point against the government which is in a minority in the Upper House. It said the government has made a couple of “significant substantive changes” about which it has reservations.
The Congress had on Monday opposed the government’s move to withdraw the Judicial Appointments Commission Bill, 2013, introduced by its government, and demanded that amendments be brought to that Bill. But it found no support from the rest of the opposition.
The stand to be taken on the Bill came up for discussion at a meeting of the party’s parliamentary affairs committee on Tuesday, which was attended by Rahul Gandhi. Sources said former Law Minister M Veerappa Moily and senior lawyer Abhishek Manu Singhvi spoke about certain “infirmities” in the Bill.
Many leaders felt the party should not be seen as blocking the Bill which was its idea, but agreed that its concerns should be put forward and, if needed, division of votes should be sought on the amendments in the Rajya Sabha.
“We are going to seek some amendments. We are not against the basic Bill.,, There are two or three significant substantive changes… We believe some of those changes (made by the government) impinge on judicial independence and perhaps disturb the balance… We will suggest changes. We may or may not have the numbers. But we will support the Bill subject to constructive changes,” said Singhvi.
“This Bill was our initiative. It was our draft, our idea, our pioneering initiative after decades. It was to restore the balance between the three organs. The BJP then opposed specific clauses which you now find in this Bill,” he said.