SC judgement a setback to parliamentary sovereignty: Govt

Will study and consider options, says govt; Attorney General says flawed verdict; Cong, AAP say verdict shows SC's lack of confidence in govt

The central government, while stating it doesn’t want a confrontation with the judiciary, termed “a setback to parliamentary sovereignty” that the Supreme Court had struck down as unconstitutional a law unanimously enacted by Parliament and 20 state legislatures to replace the 20-plus years of a collegium system of judges appointing judges in the higher judiciary.

Finance Minister Arun Jaitley and Information Technology Minister Ravi Shankar Prasad, both also senior advocates, met in the afternoon to decide the government’s strategy. Sources said Prime Minister Narendra Modi was also consulted. (COLLEGIUM VS COMMISSION: RE-THINKING JUDICIAL APPOINTMENTS)

Prasad, who had piloted the National Judicial Appointments Commission (NJAC) Bill in Parliament as the then law minister, said the government will decide what to do, including whether to go back to Parliament, after studying the 1,030-page judgment and consulting with its officers.

Law Minister Sadananda Gowda said the government was “surprised” by the verdict, while Attorney General Mukul Rohatgi said the verdict was “flawed”, for it ignored the unanimous view of Parliament and the will of more than half the legislatures. He said the government was unlikely to ask for a review of what is a detailed judgment.

Prasad was circumspect in his first reaction. He said the SC's willingness to hear the issue of improving the collegium system from November 3 was an acknowledgement on its part that there was something wrong in that system. However, he was more forthright in the evening, after consultation with colleagues. “While holding very dearly the principle of independence of the judiciary, I regret to say that parliamentary sovereignty has received a setback… Questions have been raised on parliamentary sovereignty,” he said.

Sources in the government said the apex court, by quashing the NJAC Act, was encroaching upon Parliament’s right to legislate. Its law officers are trying to understand the constitutional ramifications as the Act, the 99th amendment to the Constitution, also amended Articles 124 and 217 that dealt with the appointments of judges in the SC and high courts, respectively, and with it the collegium system. “Is the Supreme Court trying to revive a body that is already dead?” a source asked.

Prasad said the executive had a greater role in appointing judges before the collegium system was introduced in 1993 and appointed judges of the stature of P N Bhagwati, M Hidyatullah and others. He also wondered whether “judges appointing judges is the only way of judicial independence”.

Prasad found it curious that the PM can decide upon who will be the President of the country, the chief of the Union Public Service Commission and appoint the three defence chiefs but not a judge. He also detailed the widespread consultations and consensus on the issue. “We respect the SC but the country needs to be told the background of NJAC. This was part of the larger judicial reforms,” he said.

The NJAC, the first Bill of the new government to become law, was passed unanimously by the Lok Sabha in August 2014. In the Rajya Sabha, the solitary dissent was by Ram Jethmalani who had walked out of the House, arguing for a more broadbased selection committee. Prasad said 20 state legislatures had ratified the Bill. He said the law ministry had written to 26 national and regional political parties for their views on the issue and all had supported NJAC. He said the consensus reached was “a unique moment in the democratic polity of India”.

The minister said that the National Commission to review the Constitution of India, constituted in 2002 under the chairmanship of former Chief Justice MN Venkatachaliah, had recommended that the collegiums system be done away with. The Administrative Reforms Commission and late the Law Commission in its report in 2008 had also agreed as did three parliamentary standing committee reports.

The Congress, which had supported the NJAC in Parliament, found the development an opportunity to hit out at the government. Its spokesperson Randeep Surjewala said the judgment implicitly reflected the ?lack of confidence? in the Narendra Modi government which has ?eroded? institutional autonomy and constitutional safeguards.

Ashwini Kumar, law minister in the UPA government, termed it a ?watershed? event, but cautioned that this shouldn?t lead to a confrontation between the judiciary and the legislature. M Veerappa Moily, another UPA law minister, attacked the government for its ?recluse approach?. ?What the government has said inside and outside the court has hurt the soul of the judiciary,? he said. Both Kumar and Moily had handled the NJAC Bill.

Aam Aadmi Party spokesperson Ashutosh said the judgment was a ?great blow? to the government. He said the independence of the judiciary was under severe threat under the present dispensation and the judgment should be welcomed.

Congress MP Shantaram Naik, former chairman of the parliamentary standing committee that had submitted the report on the Judicial Appointments Commission Bill, said there was nepotism in the way judges are appointed and that in no country in the world judges appointed judges.

Former Chief Justice Altamas Kabir and retired Supreme Court Judge Justice AK Ganguly said the decision restored the independence of judiciary but former Delhi High Court judge Justice RS Sodhi said the verdict shows lack of trust in Parliament?s maturity.

Ends