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Journalism of Courage
BACK IN August 2014, almost all parties united in both Houses in Parliament – the AIADMK abstained – and more than 50 per cent of states including those led by the Congress and the Left, unanimously ratified laws to bring in the National Judicial Appointments Commission (NJAC) to replace the Collegium system of appointment of judges to the higher courts.
However, that rare unanimity is coming unstuck as the Government ratchets up its attack on the higher judiciary for striking down NJAC as unconstitutional.
The Indian Express spoke to several leaders across the political spectrum to find a clear shift in the position of many.
For the record, the Government has said that there is no proposal, “at present,” to re-introduce the NJAC. But political leaders see the attack as a foreshadow of what could lie ahead.
Leaders in the Congress said they are unlikely to support the Bill if it’s brought back, the Trinamool Congress said it will reconsider its stance, the RJD said any NJAC that doesn’t have caste or community representation won’t have its support and the DMK questioned the Government’s motives. The CPM said that it continued to support the NJAC.
Since replacing the Collegium system calls for a Constitutional amendment Bill, it requires a majority of not less than two-thirds of MPs (Members of Parliament) present and voting in the Lok Sabha as well as the Rajya Sabha. It also needs the ratification of legislatures of not less than one-half of the states.
Many in the Opposition feel the remarks by the Law Minister Rijiju coupled with Vice President Jagdeep Dhankhar’s statements signal that the government is preparing the ground for bringing the Bill.
Said Congress party’s Chief Spokesperson Jairam Ramesh: “This whole issue is being orchestrated at various levels… expect the NJAC to be back or at least keep the threat of it alive so as to get the judiciary to fall in line.” Saying he wasn’t speaking for his party, Lok Sabha MP Shashi Tharoor said: “We should do everything possible to preserve the independence of the judiciary from the executive. Subordinating the judiciary to executive control would be to compromise its independence at the very moment of appointment.”
Said Congress Working Committee member and lawyer Abhishek Singhvi: “The Congress is unlikely to support, though, in absence of any suggested move by the government, we cannot be expected to give our decision in advance.” P Chidambaram said the Congress’s decision “will depend upon the text of the Bill and the composition of the NJAC.”
His colleague Manish Tewari said the Collegium system may not be perfect but it is the law of the land. “Government cannot sit on judicial appointments. It is tantamount to subverting the Supreme Court judgement striking down the NJAC. If the government was unhappy, it should have filed a review petition and if that were to be dismissed, they should then have filed a curative review. They chose not too means they accepted the judgment, however unhappy they might be,” he said.
Trinamool Congress’s Sukhendu Sekhar Ray said the party had supported the NJAC Bill in both Houses of Parliament in 2014. “But now the way the government is bent on encroaching upon Constitutional authorities, particularly the judiciary, our party may consider the present unpleasant scenario in its proper perspective. Ministers and even the Vice President of India have unleashed a direct attack on the independence of judiciary.”
While NCP leader Praful Patel said the party has not discussed the issue, the Rashtriya Janata Dal signalled signalled it would support NJAC if the Bill provided for reservation. “All institutions in a democratic country should have a representative character, and should reflect the diversity of caste and community. The Collegium system has not been able to address the issue of the widest possible representation, an Indian reality,” RJD leader Manoj Jha said. “The RJD believes the idea of reservation should be introduced for the judiciary.”
A senior DMK leader said the government is raising the heat after seven long years because it is sensing there could be a pushback from the Supreme Court. “There is talk about the apex court disregarding the mandate of the people and all. Why didn’t the government not file a review petition then?” he said.
The CPM, which had supported the Bill in 2014, said its stand remained the same. “We want a national judicial commission that should not only make appointments and decide on transfers, but also decide on everything else connected with the judiciary… along with all the questions raised on the judiciary,” CPM General Secretary Sitaram Yechury said.
In 2014, the Lok Sabha had passed the Bill with 367 MPs voting in favour and none opposing. The AIADMK which had 37 members had abstained from voting then. In the Rajya Sabha, the Bill was passed with 179 MPs voting in favour and only Ram Jethmalani abstaining. And states ruled by both the BJP and the Opposition parties had ratified the Constitution amendment Bill.
In February 2015, the government had told Parliament that 17 states out of the 29 states had ratified the Bill before President Pranab Mukherjee accorded his assent to the Bill on December 31, 2014. The law was struck down by the Supreme Court in October 2015.
Congress Rajya Sabha MP Vivek Tankha is planning to give a notice in Parliament seeking a discussion on the issue. Referring to the remarks by the Vice President and the Law Minister, he said “Creating a controversy and leaving it unaddressed is worse. If the situation is so alarming that the dignitaries had to address the court publicly then it deserves a serious discussion in Parliament.”
