The NDA government has decided to “resume consultations” for setting up of a National Judicial Commission that will replace the collegium system of appointments to the Supreme Court and High Courts, giving the executive a say in the matter. While the latest controversy over Gopal Subramanium’s proposed appointment to the SC may have triggered this push for the Commission, government sources said it was part of the BJP manifesto, and many eminent jurists have been advocating it for long.
“The government is going to resume consultations on the Judicial Commission. It is on our agenda of priority,” a top government functionary told The Indian Express.
As for the controversy surrounding the government’s decision to stall Subramanium’s elevation following adverse reports by the CBI and Intelligence Bureau, sources refuted the former Solicitor General’s allegations that it was done because the government feared that he would not toe its line.
Government sources said J Gopikrishnan, a journalist with The Pioneer, had on May 14 sent a complaint to the President against the collegium’s recommendation for the former SG’s appointment. The President had forwarded the complaint to the government, which then sought a report from the IB and CBI. Their reports had reportedly questioned Subramanium’s propriety as SG in the 2G case and also his alleged links with former corporate lobbyist Niira Radia.
When contacted, Gopikrishnan said he had sent the complaint “during the election period” and “in my personal capacity”.
“His (Subramanium’s) suitability as a SC judge in the light of these reports, and not his professional competence, was our area of concern. How could any government ignore such reports? Dignity of the institution of judiciary is more important. By alleging that the government acted in this manner because he wouldn’t have toed its line, he is casting aspersion on the other three names recommended by the collegium,” said a government functionary.
What appears to have also made the government expedite the process to set up the National Judicial Commission was the fact that in the past five years there have been several instances in which many recommendations sent by the Supreme Court collegium and High Courts had to be returned due to allegations.
The SC collegium had, in 2009, withdrawn Justice P D Dinakaran’s name following the government’s rejection of its recommendation. The same year, when the collegium recommended the names of Justice Swatantra Kumar and Justice Chandramauli Kumar Prasad for elevation to the Supreme Court, the government had cleared the first name while returning the file on the second name, seeking clarification about some allegations against him.
Sources said the UPA government had acted on “fictitious complaints” against Prasad, who was later appointed judge in the apex court after the collegium reiterated their recommendation.
In the past two years, more than half-a-dozen names recommended by different High Courts for appointment as judges were returned due to allegations.
It was the previous NDA regime that had first made an attempt to bring a legislation to replace the collegium system of appointments to higher judiciary but it had lapsed due to the dissolution of the Lok Sabha in 2004. The UPA II government resumed the process bringing a Constitutional amendment Bill to establish the said Commission; it remained pending in the Rajya Sabha though.
The new NDA government is unlikely to face any problem in getting Parliament’s approval for setting up the Commission as there has been a political consensus on the broader issue of the need for change in the current system of appointment of SC and HC judges.
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