The Telegraph
Tuesday , August 26 , 2014
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Bill challenge out, for now

New Delhi, Aug. 25: The Supreme Court today dismissed as “premature” a batch of petitions challenging the constitutionality of the two bills Parliament passed recently to replace the judiciary-driven system of appointing judges by a more executive-friendly one.

It, however, said the four petitioners were free to approach the court again after the bills obtained presidential assent — which can happen only if at least half the states ratify them.

Attorney-general Mukul Rohatgi had earlier assured the court that the system of appointments by a judges-only collegium (panel) would continue till the bills obtained the President’s assent.

One of the bills (the “legislative” one) proposes to replace the collegium by a National Judicial Appointments Commission; the other amends the Constitution to pave the way for this. The commission is to include three judges, the Union law minister and two eminent citizens, giving the government a say in judges’ appointments.

All the four petitions contended that the bills undermined judicial independence and, therefore, the basic structure of the Constitution.

“The present system would continue; the judges can make any appointments of any judges,” Rohatgi said in a packed courtroom during a 90-minute hearing.

He argued that a challenge to the bills was premature. “There are 29 states…. Some of the states may or may not ratify (the bills), we don’t know.”

One of the petitioners, former additional solicitor-general Bishwajit Bhattacharya, denied the challenge was premature. He cited a 1978 ruling by a seven-judge Constitution bench on a presidential reference from Neelam Sanjeeva Reddy on the Special Courts Bills introduced by the Morarji Desai government to try Indira Gandhi for alleged Emergency excesses.

The bench had said the courts could “pronounce upon the validity” even of bills “pending before Parliament” if they contained provisions that were “open to constitutional challenges”.

“If we hold that the bill is invalid, Parliament will not spend any time over passing a constitutionally invalid bill,” it said.

Rohatgi stressed that the ruling related to a presidential reference and not a plea from an individual or organisation.

“The petitions are dismissed,” the bench of Justices A.R. Dave, J. Chelameshwar and A.K. Sikri said.

The petitions included one moved by the Supreme Court Advocates on Record Association and vetted by eminent jurist Fali Nariman. The other petitioners were advocates Bhattacharya, Manohar Lal Sharma and R.K. Kapoor.