In a clear signal that the Narendra Modi government will not shy away from a possible confrontation with the judiciary on the issue of replacing the collegium system of appointments to higher judiciary with a National Judicial Appointments Commission (NJAC), the NDA government has given the go-ahead to the Rajya Sabha Secretariat to send the recently-passed 121st Constitutional Amendment Bill to states for ratification.
On Monday, the Supreme Court will hear a set of petitions challenging the constitutionality of the two Bills — 121st constitutional amendment and the National Judicial Appointments Commission Bill, 2014 — passed by both houses of Parliament last week.
The petitions filed by, among others, Supreme Court Advocates-on-Record (AoR) Association and former Additional Solicitor General Bishwajit Bhattacharyya, seek quashing of the Constitutional Amendment Bill on the ground that it “severely affects and damages the basic structure of the Constitution viz the independence of the judiciary” and accords “unbridled power” to Parliament.
Sources in the Rajya Sabha Secretariat told The Indian Express that Secretary General Shumsher K Sheriff will write to the state legislators early next week, requesting them to place the Bill as passed by Parliament before their respective legislatures for ratification. The decision to send the Bill to the states for ratification was taken in consultation with the Central government.
“The draft has been finalised and the letters from the Secretary General could be sent as early as Monday,” said a source. Asked if there was any possibility that the government could await the outcome of the petitions filed in the Supreme Court, the source said, “There is no stay (by the Supreme Court). This is part of the procedure under the Constitution.”
The petition filed by the Supreme Court Advocates-on-Record (AoR) Association, while contending that the proposed law takes away the primacy of the collective opinion of the CJI and the two senior most judges of the Supreme Court since even if all three collectively recommend an appointee, the appointment is liable to be vetoed by the other three members, asks the SC to restrain the Centre from seeking ratification by the state legislatures.
Under Article 368 of the Constitution, which empowers the Parliament to amend the Constitution, every amendment is required to be ratified by the legislatures of “not less than one-half of the states by resolutions to that effect” before the amendment Bill can be presented to the President for assent.
Sources said while there is no time frame within which the state legislatures are expected to take a call on the amendment, the Modi government is hopeful they will ratify the amendment at the first available opportunity.