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Judges' collegium system on its way out

Posted on Aug 14 2014 | IANS

New Delhi, Aug 13 : The Rajya Sabha Wednesday took up the Constitution (99th Amendment) Bill for debate, after the Lok Sabha passed it along with the National Judicial Appointments Commission (NJAC) Bill, 2014 -- a move that created apprehension in the legal fraternity on possible government encroachment in judicial independence.

While the National Judicial Appointments Commission (NJAC) Bill, 2014 was passed by voice vote, the constitutional amendment bill, which seeks to confer constitutional status on the proposed commission, was passed after a division, with 376 members voting in its favour.

The two bills seek to scrap the collegium system of appointing judges and set up a commission for this.

While both the bills were taken up in the Lok Sabha together, a discussion was held in the Rajya Sabha whether consideration of both the bills together is constitutional.

Several members raised the issue that the constitution amendment bill will need to be passed first and receive presidential assent before the second bill can be moved in the house.

Law Minister Ravi Shankar Prasad agreed to this and the constitutional amendment bill was moved alone.

The minister also said the bill is an outcome of over 20 years of consultations.

"To allay the apprehension that there has been any hurry in bringing this bill, I want to say that is has been going on since past 20 years. This government has taken cognisance of 20 years of consultation," Prasad said.

But legal experts expressed doubts about the new system of selecting judges.

Speaking to IANS, activist-lawyer Prashant Bhushan said it was not in "public interest" as it gives veto power to government to stop any appointment, thereby compromising the independence of judiciary.

Former additional solicitor general and senior counsel Bishwajit Bhattacharyya described it as a retrograde step that will compromise the independence of the judiciary.

Desisting from outright rejection of the NJAC, Supreme Court Bar Association (SCBA) president P.H. Parekh felt there should have been wide ranging consultation and deliberations before the government moved to push out the collegium system.

Monday, Chief Justice of India R.M. Lodha had defended the existing mechanism while lashing out at the "unfair" and "misleading campaign" to defame the judiciary and to tarnish its image.

Prasad tried to allay such fears, claiming the measures were aimed at ensuring that only meritorious people are selected as judges to the higher judiciary.

"A large section of people do not have representation in the judiciary as of now. The process of consultation has been made more meaningful," he said.

He also said the new law will provide for wider consultations for appointment of judges to the Supreme Court and high courts.

"We are for maintaining the sanctity of the judiciary... We have said this house respects independence of judiciary. That should be assuring," he said.

Seeking the support of all parties, he said, "Let the message go that this house is one for maintaining dignity of the judiciary."

The law minister also moved an amendment to change the number of the constitution amendment bill from 121st to 99th, which was passed by the house.

Earlier, Congress leader Mallikarjun Kharge asked the government to make a provision to make representation of Scheduled Castes and Scheduled Tribes mandatory in the judicial commission.

The bills propose that the Chief Justice of India will head a six-member National Judicial Appointments Commission, other members of which would be the law minister, two senior Supreme Court judges and two eminent people.

A collegium comprising of the prime minister, the chief justice of India and the leader of the single largest party in the Lok Sabha will select the two eminent people.

One eminent person will be nominated from among the Scheduled Castes, Scheduled Tribes, OBCs, minorities or women.

The bill states that the commission will seek the views of the governor and chief minister of the state concerned in writing before appointing or transferring a judge of that high court.

However, there are doubts about the smooth sailing of the bills in the Rajya Sabha where the government does not enjoy a majority. Unlike the lower house where the BJP has a simple majority, the ruling coalition has 59 members in the 243-member upper house.

A constitutional amendment bill needs two-third majority to be passed and the government will need the support of other parties to pass the bill.

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