Twenty-one years after the collegium system of selecting judges to the Supreme Court and high courts was ushered in, Parliament on Thursday unanimously passed a bill to set up a National Judicial Appointments Commission (NJAC) that will replace that system.
The 99th Constitution Amendment Bill to grant constitutional status to the NJAC was also passed by the Rajya Sabha, a day after both the Bills were passed by the Lok Sabha. Announcing that the NDA government was ready to face a legal battle if the legislation were to be challenged in a court of law, Law Minister Ravi Shankar Prasad said Parliament must not be wary of using law-making powers granted to it by the Constitution.
“If it is challenged, then we will see it. Why Parliament must be wary of using its powers? Parliament must have full trust in the ability of Parliament to pass the law,” he said.
The constitution amendment bill, which required a division, saw 179 members voting in favour of it and one member — Ram Jethmalani — abstaining. The NJAC bill was passed by a voice vote. Prasad and Finance Minister Arun Jaitley asserted that the primacy of judiciary in selection of judges will remain since the Chief Justice of India will be heading the NJAC and two of the senior most judges will be among its six members.
“This House respects the independence of the judiciary and this House also respects the supremacy of Parliament,” Prasad said. The discussion on the Bill saw several members raising the issue of lack of representation for Scheduled Caste, Scheduled Tribes, OBCs and minorities in the higher judiciary.
BSP leader Mayawati demanded reservation for SC/ST and OBCs in judiciary. Prasad said NJAC would come up with a data bank to scout talented lawyers from the weaker sections, who could be elevated as judges.
The constitution amendment bill will have to be ratified by half of the state assemblies first and then get the President’s assent before it becomes a law to pave the way for the setting up of NJAC.
With CPM’s P Rajeeve arguing that the proposed commission should also deal with accountability issues and not just appointment and transfers, Prasad said loading everything into one commission would make it cumbersome and made it clear that the government will soon take a view on the judicial standards and accountability bill, which is pending in Parliament.
The government also sought to dispel apprehensions about the selection of the two eminent personalities in the commission. Noting that they will be selected by a panel comprising the Prime Minister, Chief Justice of India and Leader of the Opposition in Lok Sabha, Prasad said, “Should we not trust their collective wisdom. If they can govern the country well, they can select eminent persons as well.”
Jaitley said while the independence of judiciary is part of the basic structure of the Constitution and must be maintained, an elected government too is part of the structure. He asked whether it was not an aberration if its views are not considered. “The balancing act is to let this power be collectively exercised,” he said. “We are restoring the spirit of the Constitution… while maintaining the primacy of the judiciary.”
He said the NJAC 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.