The voting on twin Bills of judges appointments and enabling constitutional amendments in the Lok Sabha was put off till Wednesday, even as the government in a major change from previous Bill has introduced the veto power to it in the selection of the Supreme Court and high court judges.
According to the new Bill, even if the proposed six-member commission that will replace the existing collegium system of judges selecting judges recommends names unanimously, a clause in the Bill empowers the government to not only return the recommendations, but also reject if recommended again by a majority. This gives the government or executive the final say on judges appointment in the higher judiciary, a power snatched away by the judiciary through two historic judgments of the Constitution Bench in 1993 and 1998.
The original plan of the government was to seek passage of the Bills in Lok Sabha on Tuesday and then seek and from Rajya Sabha on Wednesday. But the passage from both the Houses now seems remote unless the government quickly addresses three major issues identified in the Bill by the Congress.
The government being in minority in the Rajya Sabha needs Congress support, especially as the Constitution Bill need to be passed by two-third members.
The passage of the twin Bills in the Lok Sabha will, however, enable the government to convene a joint session of parliament as permitted under the Constitution as a method to overcome any Bill stuck in one of the Houses while passed by another. The Constitution Bill, however, will not become the law straightway as it will then requires ratification by the Legislatures of not less than half the states under Article 368(2).
In his both introductory and preliminary remarks at the end, the law minister Ravi Shankar Prasad said the government has absolutely no intention to interfere in the rights, jurisdiction, constitutional powers and institutional integrity of the Supreme Court and high courts because of the institution of a new mechanism for appointments and transfers of the higher judiciary through these Bills.
Former law minister M Veerappa Moily, who initiated the debate supporting the Bills on behalf of the Congress, pinpointed four flaws inserted by the government in the previous UPA Bill to get it a free hand to block any appointments not suiting it. He objected to the provision prohibiting the proposed National Judicial Appointments Commission recommend any name opposed by any two members.
Hyderabad MP Asaduddin Owaisi, the lone opponent to the Bill, questioned the discrepancy in the Constitution Bill and NJAC as the former says the Commission should ensure to recommend the person of ability and integrity to be a judge while the other act is silent on integrity and instead says the person will be recommended on the basis of ability, merit and any other criteria of suitability.
The Bill proposes the commission to be headed by the Chief Justice of India with two other judges as its members, besides the law minister and two other eminent jurists selected by a collegium of CJI, prime minister and the leader of opposition or leader of the single-largest opposition party in the Lok Sabha. Also one of the jurists has to belong to the SC, ST, OBC, minorities or female gender.
A different process is prescribed for appointment of the CJI, putting in writing for the first time that it shall be mandatory for the commission to appoint the seniormost Supreme Court judge as the CJI unless he is considered unfit otherwise. The government did not go by the convention in this matter because of the past experience.
Interestingly, the Bill seeks to put an end to the collegium system in selection of the Supreme Court judges, but it does not knock out the collegium system for the high court appointments.
A high court Chief Justice or judges' appointment or transfer can emanate either from the Commission or based on the recommendation from th High Court collegium comprising the Chief Justice and two seniormost judges of that High Court. Once the commission gets such a recommendation, the Bill lays down a mandatory condition that view of the state's governor and chief minister will be obtained in writing.
So far, their views were verbally communicated to the Supreme Court collegium within 15 days of intimation to them. A related Constitution Amendment Bill to make the Commission a constitutional body envisages three new amendments in Article 124 that stipulates appointment of all Supreme Court judges by the President in consultation with the CJI except when the CJI is to be appointed.