Since it came to power, the Narendra Modi government has caused considerable disquiet over the manner in which it has taken on the higher judiciary on multiple fronts.
Judicial reforms, no doubt, were part of the BJP’s election manifesto, but the speed with which the government moved to rein in the judiciary so early in its tenure has surprised many. To begin with, it asked the Supreme Court collegium to reconsider its recommendation to make senior lawyer and former solicitor general Gopal Subramanium a Supreme Court judge in view of adverse reports against him.
Subramanium opted out, but alleged that the “dirt-digging exercise” was aimed at getting even with him because he was amicus curiae in the 2005 Sohrabuddin Sheikh encounter case, in which the role of the then Modi-led Gujarat government and the then state home minister Amit Shah is under scrutiny.
Soon afterwards, the government also sent back the collegium’s recommendation to post Karnataka High Court judge K L Manjunath to the Punjab and Haryana High Court.
Then, the government introduced and carried through the passage of two bills — a Constitution Amendment Bill and the National Judicial Appointments Commission (NJAC) Bill — in Parliament. These are aimed at replacing the existing collegium system of appointments to the higher judiciary with a new system.
Senior functionaries insist that the passage of the two bills was the culmination of an exercise that began 24 years ago. However, for the BJP leadership, the exercise actually began in 1999, when the Atal Bihari Vajpayee government took charge. In 1999, it set in motion the move that has now culminated with the passage of the two bills in both Houses of Parliament.
An attempt by the then Union law minister Arun Jaitley to get Parliamentary nod for a Constitution Amendment Bill, aimed at replacing the collegium system, came a cropper after the bill lapsed with the dissolution of Lok Sabha in 2004. What the party couldn’t do then, it has executed now. In doing so, it also sent out a clear signal to the judiciary that it would not shy away from a confrontation with it over judicial reforms. But the move has not gone down well with jurists and Constitution experts, who point out that this would lead to the judiciary losing its primacy. Others have accused the government of trying to turn the clock back by handing over the judicial appointments to the executive, going as far as to call the proposed system unconstitutional.
Even the government is aware that it is not a done deal. A bunch of petitions challenging the constitutionality of the new system were dismissed on “mere technicality” by the Supreme Court, which said that the petitions were premature. The Constitution Amendment Bill has still not been ratified by half of the state legislatures, and it can receive the President’s assent only after this. The government, though, is geared for a legal fight, with Union Law Minister Ravishankar Prasad saying that it would “convey its views to the court”. The jury on this issue is still out.