New Delhi, Aug. 18: Parliament’s recent legislation on judges’ appointments has drawn fire from legal experts, with two public interest pleas challenging the twin bills’ constitutionality in the Supreme Court and many lawyers threatening similar petitions.
The bills look to give the government a say in the appointment of judges, who are now picked by a collegium (panel) of fellow judges. Critics see this as an attack on judicial independence and, therefore, on the basic structure of the Constitution —though at least one eminent jurist, Harish Salve, differed.
One of the bills replaces the collegium with a National Judicial Appointments Commission of three judges (including the Chief Justice of India), the Union law minister and two eminent citizens. The other makes the arrangement a part of the Constitution.
Many of the critics are particularly against a provision that gives the veto to any two dissenting commission members, which means the law minister needs just one “eminent citizen” member’s support to block any candidate.
One of the public interest petitions, filed by advocate Manohar Lal Sharma, may come up for hearing on August 26 while the other, filed by fellow advocates R. Krishnamurthy and N. Rajaraman, is yet to be formally listed.
Legal luminary Fali S. Nariman and former UPA law minister Kapil Sibal have announced that they too intend to challenge the bill in the apex court. The UPA government had introduced a similar bill in 2008 that got stuck in a House panel, but it was silent on any veto power — which Sibal says he opposes.
The government used to have a role in judges’ appointments till a nine-judge Supreme Court verdict in 1993 took it away in favour of the judiciary.
Both the public interest petitions argue that the bills run counter to the basic structure of the Constitution as expounded by:
A 13-judge Supreme Court bench that said, in the historic Keshavananda Bharati case of 1973, that Parliament couldn’t enact laws that emasculated the fundamental features of the Constitution;
A five-judge ruling in the Indira Gandhi vs Raj Narain case of 1975 that quashed the 39th amendment to the Constitution which, piloted by then Prime Minister Indira Gandhi, purported to place certain constitutional posts beyond judicial scrutiny.
In these two judgments, the apex court had held that no act of Parliament could alter the Constitution-mandated separation of powers among the executive, legislature and judiciary.
But Salve told The Telegraph he did not find anything unconstitutional in the bills. He said the government could deal effectively with any legal challenge to the bills by contesting the 1993 judgment that accorded primacy to the Chief Justice of India in judges’ appointments.
“If challenged, the government should ask for the (1993) judgment to be reconsidered,” Salve said. Several other senior lawyers disagreed.
“To me, it (the bills) is an attempt by the executive to cripple the judiciary. I believe the Supreme Court will declare it unconstitutional,” constitutional expert Colin Gonsalves said.
“It’s one thing to say the collegium system has not worked well and there is a lack of transparency. Butů the moment the executive can overrule a choice (made by) the judiciary, the situation will become worse than the criticism levelled against the collegium system.”
Told that nowhere else in the world do judges appoint their peers, he shot back: “Tell me (about) one country in the world that has such an independent judiciary?”
Former additional solicitor-general Bishwajit Bhattacharya said the bills would “severely compromise the independence of the judiciary”.
He cited Article 124 of the Constitution, which says the “Chief Justice of India shall always be consulted” in judges’ appointments, to argue that the veto power to commission members was unconstitutional.