New Delhi: Government and Opposition were today united in criticising the functioning of the judiciary and sought to scrap the collegium system of appointing judges to higher courts, saying it is essential to restore the delicate balance of power which has been disturbed.
As Rajya Sabha took up a bill to amend the Constitution to set up a Judicial Appointments Commission replacing the collegium system, Law Minister Kapil Sibal, Leader of Opposition Arun Jaitley and several other members were of the view that the present system of appointing judges to Supreme Court and High Courts lacked transparency and accountability.
Moving the Constitution (120th Amendment) Bill, 2013,Sibal said the Judiciary "rewrote Constitution" in 1993 when the collegium system of appointing judges to higher courts was adopted which disturbed the delicate balance between the Judiciary, the Legislature and the Executive.
"Sometimes moments come in the life a nation when you have to revisit the past and embrace the future. One such moment has come today," he said.
Sibal, a renowned lawyer, noted that it was in 1993 that the Supreme Court sought to change the procedure of appointment of judges in higher judiciary with an interpretation of Article 124 (2) by bringing in a collegium system.
"With greatest respect to Supreme Court of India, I believe they rewrote Constitution," he said.
Underlining that appointment of judges has "nothing to do with judicial function", he said, "The acts of appointments are Executive acts. The judiciary has taken over executive power by rewriting Article 124 . That balance must be restored. Executive must have a say in appointment."
Sibal said, "It has disturbed the delicate balance of separation of powers. There is very clear division of powers among the Executive, Legislature and Judiciary in our Constitution. Judiciary cannot take over the function of the Executive."
Sibal noted that Judiciary says government must be transparent and accountable and that accountability is at the heart of the Executive`s decision making but nobody knows how a judge is chosen under the collegium system.
"How is a judge appointed? We have no access. There is no transparency. RTI doesn`t apply. We can`t seek any information. What is the basis," the minister said.
Jaitley, also a noted lawyer, echoed Sibal`s views as he pressed for re-establishment of the "separation of powers".
The BJP leader said when other establishments of the democracy do not infringe upon functioning of the judiciary, then why would it ask the government to do this or do that and direct even on the economic policy of the government.
"Courts cannot review a policy and say that my policy is better that your policy...It cannot say how to be tough on the Naxalites," he said.
Citing the ban on iron ore exports, Jaitley sought to link judicial orders partially to the present state of Current Account Deficit and depreciation of Rupee as a result of that.
Attacking judiciary, he said no government, irrespective of its complexions, has ever said that since court has three crore cases pending, somebody else would do it for courts.
Stating that the present system of appointing judges lacks transparency, Jaitley said the three-member collegium often left out the best of the lot for a promotion and go ahead with their choices. "A collegium is as good as the members of the collegium," he said as he observed, "judges appoint themselves and judges are accountable to judges."
Sibal said the collegium system, under which the Chief Justice of India, in consultation with Supreme Court judges, makes appointments in High Courts has "disturbed the very independence of the High Courts".
"If the Supreme Court is so keen to protect the independence of the Judiciary, it should be equally keen to protect the independence of High Courts. In the case of appointment of Judges in High Court and Supreme Court, this delicate balance of power has been disturbed," he said.
Sibal also chose the occasion to flag his concerns over "nepotism" in the judiciary. "We are really worried over the manner in which relatives of judges are practising in High Courts. It is very disturbing. It is a matter of sadness that somebody`s maternal uncle, uncle and others practice in court...How long this nepotism will continue," he asked.
The Law Minister at the same time said the government has respect for judiciary. "No one in the House has ever raised questions on judiciary or conduct of judges. We know there should be no impact on the autonomy of this great institution" but the benchmark on which our decisions are judged should apply to their decisions as well, Sibal said.
The minister said the Supreme Court interpreted Article 124 (2) to say that the primacy is not of the executive and had set up the collegium system.
"This resulted in a situation where executive is not part of the appointment process. Today we only have a ministerial function. Today the collegium decides and sends them to us. We then act as a Post Office and seek the consent....We suggest we have certain objections and if they reiterate we have no option. We have no role to play," Sibal rued.
He said all political parties were concerned over this "rewriting" of the Constitution by the Supreme Court in the process of interpretation and the National Front government that in the 1990s, for the first time, proposed a National Judicial Commission.
Sibal said BJP also said in its manifesto in 1998 that appointment process of judges should be streamlined through National Judicial Commission, a view was supported by a number of parties then.