NJAC Bill needs introspection, says Manish Tewari

The stage is set to refer the 121st Constitutional Amendment Bill that deals with the appointments and transfers of Judges of the Supreme Court and the High Courts to the State Legislatures for ratification in terms of the proviso to Article 368 of our Constitution, which requires one half of the State Legislatures to ratify by resolution an amendment to the Constitution in relation to the Union Judiciary, State Judiciary or those provisions which relate to Centre-State relations. The time has come for the State Legislatures to take this exercise with profundity rather than "a party whip" driven unthinking process. In fact there is a very strong case for diluting the rigors of the Anti Defection Law as the proposed by the writer in a Private Members Bill in the previous Lok Sabha.

Constitution

The consideration of the Constitution (121st Amendment) Bill, 2014 along with the National Judicial Appointments Commission Bill, 2014, can only be termed as a Constitutional and a legislative aberration, as until and unless the amendment process was complete, after ratification by one half of the Legislatures of the States, the provisions of the NJAC Bill ought not to have been introduced much less considered and passed by the Parliament. The same can only be termed as a constitutional impropriety.

The reasons why the State Legislatures must apply themselves to the provisions of the Constitutional Amendment Bill is because the framers of the Constitution were very clear in their conception that judicial independence is the corner stone of democracy. It is the final frontier of justice for the last person in the last row when the executive fails him or tramples upon his legal and Fundamental Rights. It therefore provided in the amending article that any constitutional amendment that deals with the judiciary it must be scrutinized by legislators in addition to parliamentarians as they have an equal if not a greater stake in the issue, being closer to the grass roots dynamics as India lives not in New Delhi but it's states.

The flaws in the Constitutional Amendment and the bill are myriad, however, what is of concern is that the Commission to select and transfer judges has a quixotic provision whereby its eminent members are not required to be jurists. Though the process mandates that a High Powered Committee will decide whom these eminent persons are, it may have been wiser to have the President and the Chief Justice appoint such persons (as suggested by the Venkatachaliah Commission), thereby precluding any executive influence.

The provision with regard to reservation of one of the eminent members can only be described as regressive. Our higher judiciary does not contemplate any reservation for appointment, and such a reservation in the membership of the Commission will only spur demands for a system of reservations in the appointments as also transfers of the higher judiciary itself.

Governance

What is also pertinent is that if the Government of the day has a vote in the appointment of Judges, it would be incumbent that the political opposition also has a direct and an equal say to maintain the balance of a democratic polity, after all, the appointment of Judges is too serious a business to be left to the tender mercies of the executive that incidentally is the biggest litigant across the country.

The procedure contemplated by the NJAC Bill also leaves many questions raised against the Collegium System unanswered. What is interesting to note is that while the consultation system is completely done away with for the appointment of Judges of the Supreme Court, it is partially maintained for the appointment to the High Courts.

The requirement of a 5/6th majority for the appointment of Judges of the Supreme Court can only be termed as extremely arduous. If two members of the NJAC are given a veto to stall the appointment of Judges, one can reasonably apprehend a gridlock in judicial appointments.

Intriguingly the appointments of the Judges of both the High Court and Supreme Court are contemplated by the Commission in terms of the regulations to be prescribed. The NJAC Bill excessively delegates power to prescribe the procedure to be followed by the proposed Commission.

Even prior to the introduction of the two Bills for consideration in Parliament, there was no effective consultation with Bar Associations. The least that needed to be done was to have broad based stakeholder consultations across the country involving people across the spectrum as everyone has a stake in the functioning of the justice system.

Justice

Supreme Court

The primary grievance of the secrecy of the Collegium has not been cured, and the proposed system is as opaque as the existing one. Our Constitution is a living document, whereby the Supreme Court has been given an important role in regard to judicial review. There is no doubt that the proposed changes will see another round of litigation. What would be interesting to see is how the Government will bring the amendment to the Constitution within the framework of the basic structure doctrine laid down in Kesavananda Bharati, which has successfully surmounted legislative and constitutional and legal challenges.

It therefore is important that members of the state legislatures must apply themselves to the provisions of the Constitutional amendment bill. Political parties in the larger national interest must ensure that no whips are issued and legislators are permitted to exercise their conscience on a matter germane to the rights of the sovereign and the very existence of the republic.

Given the experience of the post colonial world the reason why India was able to maintain its democratic continuity is because of the doctrine of separation of powers. If the Constitutional Amendment fails to pass legislative muster the interests of posterity would be protected in perpetuity.

- The writer is a lawyer & former Union Minister. His twitter handle is @manishtewari