Supreme Court panel at judge home, Jagdeep Dhankhar revives NJAC debate: ‘Would have been different’

The committee, comprising Chief Justice of Punjab and Haryana High Court Justice Sheel Nagu, Chief Justice of Himachal Pradesh High Court Justice G S Sandhawalia, and Justice Anu Sivaraman of Karnataka High Court, reached Justice Varma’s Tughlak Crescent bungalow at around 1.30 pm and left after nearly 45 minutes.

The committee members also met Chief Justice of India Sanjiv Khanna during the day.

On Monday, the Supreme Court Collegium formalised its recommendation for the transfer of Justice Varma to Allahabad High Court. Sources said the opinion of the judges and the response of Justice Varma were examined. Justice Varma said he was willing to go to Allahabad High Court, sources said.

Leaders of parties which attended the meeting called by Dhankhar told The Indian Express that the discussion was open-ended with no concrete proposal on the table.

Some leaders felt the meeting was an attempt to gauge the mood of the parties, especially those from the Opposition, on the Collegium system of appointment of judges to the higher courts, which the NJAC had sought to replace.

The law to bring in the National Judicial Appointments Commission was passed by Parliament in 2014 but was struck down by the Supreme Court in 2015.

The NJAC Act had proposed that appointment of judges be done by a six-member body, headed by the Chief Justice of India, and comprising two most senior SC judges, the Union Law Minister and two “eminent” persons. The two eminent persons were to be selected by a panel comprising the Prime Minister, the CJI and the leader of the largest Opposition party in Lok Sabha.

However, the Supreme Court was of the view that there was no question of accepting an alternative procedure which did not ensure primacy of the judiciary in the matter of selection and appointment of judges in the higher judiciary.

Taking serious note of the discovery of cash at the house of the High Court judge, Dhankhar had discussed the issue Monday with Leader of the House in Rajya Sabha J P Nadda and Leader of the Opposition Mallikarjun Kharge. Those who attended the meeting Tuesday said there was no immediate outcome since there was no proposal or suggestion on the table. “The Chairman spoke about issues like democracy and judicial overreach… It was more of an attempt to gauge the mood of all the parties… He has been referring to NJAC for the last three days,” one leader told The Indian Express.

The meeting was attended from the government side by Nadda, Parliamentary Affairs Minister Kiren Rijiju and Law Minister Arjun Ram Meghwal. Leaders who participated included Kharge and his party colleague Jairam Ramesh, Union Minister and RLD leader Jayant Chaudhary, DMK’s Tiruchi Siva, TMC’s Sukhendu Sekhar Ray, BJD’s Sasmit Patra, CPM’s John Brittas, AAP’s Sanjay Singh, Shiv Sena (UBT)’s Sanjay Raut and CPI’s P Sandosh Kumar.

With no proposal on the table, sources said the Opposition too played it safe. Kharge, sources said, underscored that lack of transparency and lack of representation in higher judiciary coupled with the latest development were areas of concern. But he pointed out that the independence of the judiciary too is very important, and that elected democracies have, in the past, turned into autocracies.

In a way, Kharge put the onus on the government, suggesting it should come up with a proposal. On his part, Nadda said the Supreme Court is already looking into it and the question is how far can Parliament get into it now. On the way forward, he is learnt to have said that let the parties hold internal discussions. He proposed another meeting.

“Since there was no proposal on the table, the leaders were cautious and did not speak much… Congress’s Jairam Ramesh did ask about the fate of the impeachment motion against Allahabad High Court judge Justice Shekhar Kumar Yadav which the Opposition parties had given in December,” another leader said. Dhankhar told them he was getting the signatures verified as the signature of one member had appeared twice and the member had denied it was his signature.

In 2014, all parties in both Houses — barring the AIADMK which abstained — and more than 50 per cent of states, including those governed by the Congress and the Left, unanimously ratified laws to bring in the NJAC to replace the Collegium system of appointment of judges to the higher courts.

But that consensus is no longer there as many of the Opposition parties now feel the government should not be given control over appointment of judges to higher courts.

Most Opposition leaders whom The Indian Express spoke to said they are unlikely to give blanket support if the government brings back a Bill to replace the Collegium system.

While announcing his decision to call a meeting of floor leaders, Dhankhar referred to the NJAC again, saying it was a “visionary step”. “And imagine if that had taken place, things would have been different,” he said.

The law was passed by Rajya Sabha with near unanimity, with no dissension, only one abstention, and was later endorsed by the requisite 16 state Assemblies and signed by the President under Article 111 of the Constitution, he said.

“Now, it is befitting the occasion to reiterate (that it) was a visionary step. And imagine if that had taken place, things would have been different. What emanated from the Indian Parliament as a historic development with rare convergence of unanimity since independence, found acceptance by needed state legislatures. We need to reflect on what happened to that,” he said.

Dhankhar said under the Constitution, there is no provision that allows anyone to tinker with a Constitutional amendment. “There is no Constitutional provision of review or appeal of a Constitutional amendment. If there is a legislation (passed) by Parliament or state legislatures, judicial review can take place on whether it is in conformity with the Constitutional provisions,” he said.

He went on to state that one is considered innocent until proven guilty, but MPs should think about the “judicial mess”.

“Before the nation, there are two situations. One was what emanated from Parliament duly endorsed by state legislatures (and) sanctified by the President by appending signatures under Article 111. The second is a judicial order. Now we are at a crossroads. I strongly urge members to reflect. There can be no breach by any institution of what emanated from the Parliament, endorsed by the legislatures. This should, again, I reiterate, be the mechanism holding the field,” he said.

Describing the current situation as “extraordinarily painful”, he asked MPs to mull over the fallouts. “Innocence is something which we take at a very high level till someone is proven guilty,” he said.

Dhankhar said it was a “very critical and important issue that concerns much beyond judicial mess. It concerns the sovereignty of Parliament, supremacy of Parliament, and whether we are at all relevant”.