The Telegraph
Friday , August 22 , 2014
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Challenge to judicial bills

New Delhi, Aug. 21: The Supreme Court today agreed to examine a batch of four petitions that have challenged the constitutionality of the twin bills Parliament recently passed on judges’ appointments.

All four petitions allege that the bills, which look to end the judiciary’s primacy in judges’ appointments by giving the government a say, are an attack on judicial independence and, therefore, on the basic structure of the Constitution.

One of them also raises a procedural question, arguing the “legislative bill” is invalid because it was introduced and passed simultaneously with — and not after — the constitutional amendment bill that would allow the change it sought.

Both bills need to be ratified by at least half the states and obtain the President’s assent before they can be enforced.

A three-judge bench headed by Chief Justice R.M. Lodha told the petitioners it would examine the petitions if the court registry was satisfied with their technical correctness and listed them for hearing.

One of the petitions was moved by the Supreme Court Advocates on Record Association after eminent jurist Fali Nariman vetted it. The other three were moved by advocates Manohar Lal Sharma, R.K. Kapoor and Bishwajit Bhattacharya, a former additional solicitor-general.

A judges-only collegium (panel) now selects judges for appointment to the Supreme Court and the high courts. The “legislative” bill transfers this power to a National Judicial Appointments Commission that will have three judges, the Union law minister and two eminent citizens, with dissent by any two members amounting to a veto.

The constitutional amendment bill makes the appointments commission a part of the Constitution.

According to the Nariman-vetted petition, the legislative bill could not have legally been introduced or passed till the Constitution had been amended to make room for the appointments commission it mandates.

However, it notes, the government introduced both bills more or less simultaneously and both Houses of Parliament passed them together by voice vote.

This means that Article 124(2), which now guides judicial appointments, was in force as originally enacted and had not been amended when the legislative bill was passed, making the latter unconstitutional and invalid, the petition contends.

The petitioners have also cited the Keshavananda Bharati case of 1973, where a 13-judge Constitution Bench had ruled that Parliament lacked the power to amend the Constitution in matters relating to the separation of powers between the legislature, executive and the judiciary.

The other two judges on the three-judge bench that is likely to hear the petitions are Justices Kurien Joseph and R.F. Nariman.