There are one of three things the central government can do after the Supreme Court’s decision of striking down the National Judicial Appointments Commission (NJAC).
One, it can file a review petition, asking the SC to reconsider. However, chances of this succeeding are bleak. Attorney General Mukul Rohatgi has already said that with a detailed and 1,100-page judgement, there is hardly scope for a review petition. He said the government would decide what to do after analysing the verdict.
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If a review petition is made and the SC rejects it or sticks to its earlier decision, the government has the option of a curative petition. This is a mechanism devised in 2002 to allow another opportunity to petitioners after dismissal of their review petition.
Sources do not believe these are real options.
“(What is) left before the government is to re-introduce the Constitutional amendment bill in Parliament, after deliberating on all the contentions raised by the apex court in its judgment,” says senior advocate Jaideep Gupta.
Lawyers recall the abolition of privy purses for erstwhile royalty, guaranteed payments to rulers who had decided to integrate their states with the Union of India after Independence. They were paid some royalty amount till then prime minister Indira Gandhi brought a Constitutional amendment derecognising the royals in 1970. Though the Lok Sabha successfully passed the Bill, it was rejected in the Rajya Sabha. Gandhi asked the President to de-recognise the princes, a decision which was successfully defeated in the SC. However in 1971, after Gandhi was re-elected massively?, she got the Constitutional bill passed.
In the present NJAC case, the Constitutional amendment was passed in both houses of Parliament and at least 20 state assemblies have ratified it. The government can re-introduce and get it passed in Parliament, after giving due consideration to the objections raised in the judgment. Sources say the government is planning to hold an all-party meeting to discuss the issue.
In 1973, a 13-bench SC gave a landmark judgment outlining what is called the ‘basic structure doctrine'. It ruled that though the legislature can amend the Constitution, it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution. Any reintroduced Bill will have to clear this objection. In 1975, for instance, the Indira Gandhi government had brought an amendment to the Constitution to set aside an Allahabad high court verdict which had declared her election null and void. The amendment put the election to the office of PM, among others, immune from legal proceedings but the SC struck this down.