Judges’ Bill clears Lok Sabha, moved in Rajya Sabha
The Lok Sabha on Wednesday passed a historic bill to scrap the collegium system for selection of judges to the Supreme Court and high courts after a controversial provision that required unanimity in recommendation if the President seeks reconsideration was dropped as law minister Ravi Shankar Prasad reiterated the bill was not aimed at curbing the independence of the judiciary.
Sources said Parliament will be adjourned sine die on Thursday if the Rajya Sabha passes the bill, otherwise the session could be extended by a few days next week.
The National Judicial Appointments Commission Bill 2014 was passed by voice vote in the Lok Sabha after the government moved an official amendment, after which the 99th Constitution Amendment Bill, which will give constitutional status to the proposed commission, was passed by 367 votes in favour and nil against. Hours after its passage in the Lok Sabha, the law minister moved the 99th Constitution Amendment Bill in the Upper House. Some members voiced fears that the bill ran the risk of being struck down by the courts as “ultra vires”, prompting deputy chairman P.J. Kurien to seek the opinion of former attorney-general K. Parasaran, who is a nominated member of the House. Asserting that the House had the right to make laws and there was nothing to be scared of, Mr Prasad said the government had no desire to “transgress” the independence of the judiciary. The deputy chairman said members could move amendments, if any, on Thursday, when the discussion on the bill will resume.
The amendment moved by Mr Prasad in the Lok Sabha dropped the provision requiring unanimity in the commission’s recommendation if the President referred the earlier recommendation back for reconsideration.
After a day-long debate Tuesday, Mr Prasad continued his reply Wednesday, during which he mentioned more than once that the bill does not tinker with the judiciary’s independence while assuring the House the government wanted to maintain the sanctity of the judiciary.
The minister also recalled that the bill replacing the collegium system was pending in Parliament for 20 years, giving credit to the NDA government for bringing this legislation during the Budget Session.
On the composition of the commission, the minister said taking into account all developments in the past two decades, the government decided to have six members. “Therefore, high-ranked people are going to appoint two eminent persons. I am sure the two eminent persons will be the best available and in the collective judgment they will take a call,” he said.
The amendment makes it clear if the recommendation is returned to the President even without a unanimous recommendation, the candidate will have to be appointed.
He rejected demands for a state-level judicial appointments commission, saying Article 124 makes it clear that only the President can appoint judges to the Supreme Court and the 24 high courts.
After any constitutional amendment gets parliamentary approval, it is sent to all states, and 50 per cent of state legislatures have to ratify it. The process could take up to eight months. After ratification, the government sends it to the President for his approval.
The practice of judges appointing judges started after 1993, replacing the system of the government selecting judges for the higher judiciary. The move to set aside the 1993 Supreme Court judgment, which had led to the collegium system, requires a constitutional amendment.
In the Rajya Sabha, the law minister moved the 99th Constitution Amendment Bill after an hour-long debate on whether the House had powers to enact such a law. “The commitment of our government to the independence of the judiciary is total and complete. Our government fully respects the independence of the judiciary. There is not even the slightest doubt,” he said.
“The collegium system must cease to exist... The right of appointment is an executive act, the right of transfer is an executive act,” he said.
Congress member Madhusudan Mistry asked why the bill was being brought in a “hurry” and without being listed in the day’s business. He said members did not get time to study the bill.
Denying that the bill was being rushed through, the law minister said: “It is not being brought in a hurry. It is the culmination of the efforts of the last 20 years... It is nothing new.”
After some members pointed out that the Constitution cannot be amended without the approval of 50 per cent of state legislatures and questioned the government over bringing the National Judicial Appointments Commission Bill 2014 along with it, the law minister said the amendment to the Constitution will be effective only after the President gives his assent. The NJAC Bill was required to enable the states to know what framework was being established, he added.