Judges appointment: Constitution Amendment Bill moved in Rajya Sabha

A Constitution Amendment Bill to facilitate establishment of a Commission to appoint judges to higher judiciary was moved on Wednesday night for consideration in the Rajya Sabha.

New Delhi: A Constitution Amendment Bill to facilitate establishment of a Commission to appoint judges to higher judiciary was moved on Wednesday night for consideration in the Rajya Sabha, hours after its passage in the Lok Sabha.

The 99th Constitution Amendment Bill seeks to lay down the architecture for setting up of the National Judicial Appointments Commission (NJAC) through another bill, aimed at overturning the two-decade-old collegium system of appointing judges in the Supreme Court and High Courts.

Law Minister Ravi Shankar Prasad moved the bill after an hour-long debate on whether the House has powers to enact such a law.

Deputy Chairman P J Kurien even sought the opinion of former Attorney General K Parasaran, who is a Nominated member of the House on the issue, after members expressed divergent views with some saying it ran the risk of being struck down by the court as "ultra vires".

Asserting that the House had the right to make laws and there was nothing to be scared of, Prasad said the government had no intent to "transgress" into the independence of the judiciary.

"The commitment of our government to the independence of the judiciary is total and complete. Our government fully respects the independence of the judiciary. There is not even the slightest doubt," he said.

"There is no intention to transgress into the independence of the judiciary...The collegium system must cease to exist," he said.

At the same time, he underlined that "The right of appointment is an executive act, the right of transfer is an executive act."

Congress member Madhusudan Mistry questioned why the bill
was being brought in a "hurry" and without being listed in today`s business. He said members did not get time to study the bill.

Deputy Chairman P J Kurien rejected his contention, saying members could move amendments, if any, tomorrow when discussion on the bill will resume.

Rejecting that the bill was being rushed through, the Law Minister said "It is not being brought in a hurry. It is the culmination of the efforts of the last 20 years...The process is on for the last 20 years. It is nothing new."
Prasad said government has held "widest consultations" possible before taking the conscious decision to replace the existing system where judges appoint judges in the Supreme Court.

"If there are serious misgivings regarding collegium system", this amendment must be passed, he said, adding "It is the right of the government to bring this bill".

Some members pointed out that the Constitution cannot be amended without the approval of 50 per cent of State Assemblies and questioned the government over bringing the National Judicial Appointments Commission Bill, 2014 along with it.

To this, the Law Minister said the amendment to the Constitution will be effective only after the President gives his assent and the NJAC Bill is required to enable the states to know what is the framework being established.
The Commission will be headed by the Chief Justice of India and two senior-most judges of the Supreme and the Union Law Minister will be its members along with two eminent persons to be appointed by a committee of the Prime Minister, Leader of Opposition or the largest political party and the CJI.

He said the clause of rotation system of appointing a member from among the SC, ST, OBC or woman has been removed keeping in view the fact that if any among them is more capable he/she could be appointed.

Initiating a debate on the Bill, Shantaram Naik (Cong) said the legislation is a step towards restoration of supremacy of Parliament.

"Nowhere judges appoint judges", he said adding by passing an order regarding the collegium system, powers of Parliament and government have been taken away.

Naik said the collegium system is "not perfect" and "rotten" with nepotism.

The member said the 1993 judgement was a "coup" against "Parliamentary powers".

Supporting the legislation, Satish Misra (BSP) said the independence of judiciary has to be kept in mind.

He said the proposed commission should adopt a non-discriminatory approach in appointment of judges and in ensuring that there is at least a representation from the SC community.

Bhupinder Yadav (BJP) stressed the need for laying a good procedure in the selection process of judges while Sukhendu Sekhar Roy (TMC) said nowhere in the world judges appoint judges.

Ram Gopal Yadav (SP) and Majeed Memon (NCP) supported the legislation, saying the balance of power has to be restored in the system. K Parasaran (Nom) also spoke.