NJAC debate: Amid Justice Varma row, Congress bats for judicial accountability Bill, but with a note of caution

Justice Varma has since been transferred from the Delhi High Court to his parent High Court in Allahabad.

On March 25, Dhankhar again raised the issue during a meeting with floor leaders, saying “things would have been different” had the Supreme Court not struck down the NJAC Act. This was seen by many in the Opposition as the Vice-President’s attempt to gauge the mood of the parties on the Collegium system of appointment of judges to higher courts, which the NJAC sought to replace.

Sources said Congress president Mallikarjun Kharge consulted some senior party leaders before the meeting with Dhankhar. Some of these leaders told Kharge that the party, in principle, should agree that a mechanism should be found as a substitute for the Collegium, but its control must not lie in the hands of the executive. Doing so, the leaders maintained, would allow the government to capture the mechanism.

“We agree that there should be a satisfactory mechanism to appoint judges … Not only appointing judges, there must be an NJAAC (National Judicial Appointments and Accountability Commission), which will ensure appointments as well as accountability. We will comment after the government comes up with its formula,” a senior Congress leader said.

Many Congress leaders that The Indian Express spoke to had similar opinions. “I have no hesitation in saying that the Collegium system has largely failed. Equally, I agree that the steps taken thus far by the Chief Justice of India (Sanjiv Khanna) by initiating the inquiry are commendable and must be allowed to culminate in a report that will be shared transparently. However, having any knee-jerk reaction by using the single peg of this distressing incident to clamour for an immediate NJAC is not appropriate,” said Rajya Sabha MP and senior Congress leader Abhishek Singhvi.

He said “it would be an unpardonable error” to assume that all “distortions of judicial selection, appointments and disciplining would magically disappear if the NJAC was put in place”.

“We cannot also lose sight of the fact that, without any formal de jure locus of the government in judicial appointment under the Collegium system, this government has been known to exercise excessive intrusion and control in this sphere. The question naturally arises that if a formal and de jure locus is given in a supposed NJAC, how much more seriously would the independence of the judiciary be threatened? Hence, the first and correct step would be for the government to come out with a comprehensive, highly reformed and improved NJAC Bill upon which the civil society and the political class can appropriately analyse and react,” Singhvi said.

His party colleague and Lok Sabha MP Manish Tewari said the issue was not only one of judicial appointments but also about accountability of the judiciary short of the bar of impeachment.

Claiming that the NJAC has a limited brief, Tewari said, “It does not start and end with appointments. That is why the UPA government had brought the Judicial Standards and Accountability Bill, which unfortunately got canned. However, Parliament needs to have a threadbare discussion on its role in exercising oversight on both the legislative and the judiciary. The issue is not only judicial appointments. That is why the NJAC was passed by with near unanimity by Parliament and 50% of the state legislatures. But the most significant issue is how do you deal with an errant judge short of the bar of impeachment, because every action or alleged action of a judge may not call for impeachment … So, how do you deal with the interregnum space? That is why the UPA government brought the judicial accountability Bill. But unfortunately, the Bill got canned after a discussion in the Lok Sabha.”

Expressing surprise that Parliament was not discussing the issue despite it being on the people’s minds and the front pages of newspapers, Tewari said the Union Law Minister had not made a single statement on the chronology of events that transpired in the Justice Varma incident.

“Nobody is apportioning guilt or otherwise, but the government needs to inform Parliament. I am afraid Parliament is abdicating its responsibility if it chooses to stay silent on an issue with wider ramifications. The presiding officers should have taken an initiative and asked the government to make a statement in both the Houses of Parliament,” he said.

Former Union Law Minister M Veerappa Moily recalled that the UPA 2 government worked on two Bills, one to replace the Collegium system of appointment of judges and another on judicial accountability. “After the Supreme Court struck down the NJAC Act, the NDA government should have pursued the matter. They could have discussed with the CJI and evolved some system and brought out a new Bill. Instead, they left it to the Supreme Court… Irregularities and corruption are taking place because there is no control,” he said.

Like Tewari, Moily too said impeachment was not the only answer. “Impeachment is very rarely done. It is a long drawn process and it is not effectively done.  Time has now come to bring in two Acts, one on judicial appointments and another on judicial accountability,” he said. Asked who should have the upper hand in the NJAC, he said, “There is no question of upper hand either to the executive or to the judiciary.  There should be a proper balance.”