The National Judicial Appointments Commission Bill and its constitutional amendment approved by Parliament would not stand judicial scrutiny, senior members of the Bar told The Hindu on Thursday.
The Bill replaced the collegium system with the setting up of the National Judicial Appointments Commission. The Rajya Sabha cleared the 121st Constitutional Amendment Bill to provide constitutional status to the Commission.
But senior Supreme Court lawyers said the Bill was defective with “weak spots” that could be ripped apart under judicial review. They said the government was in too much of a hurry to “politicise the courts”.
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Stating that the government did not make efforts to have a dialogue with the judiciary before moving ahead with the Bill, they said this would have prevented a looming avoidable conflict future between the Executive and the highest judiciary.
Hints that the judiciary would not take this lying down came on August 11 when a visibly angry Chief Justice of India R.M. Lodha condemned the “campaign to defame judiciary”.
A PIL petition was filed in the Supreme Court on Thursday by advocate Manohar Lal Sharma to quash the Constitutional Amendment Bill of 2014 and National Judicial Appointments Commission Bill, 2014.
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Senior Supreme Court advocate P.P. Rao said the Bill “is an exercise for the Executive to get a handle on judicial appointments”.
“This is part of the party in power’s attempts to politicise constitutional offices. We cannot afford to have politics in court. The judicial collegium has its defects, but this Bill is not the solution,” Mr. Rao said.
Mr. Rao questioned the “concept” of having two eminent persons as members of the Commission.
“What is this concept of eminent persons in the Bill? The Bill does not explain the term ‘eminent’ in the context of their proved ability to select the able candidates as judges to the highest courts. What is this reservation for one of the eminent persons?” he asked.
Senior advocate Anil Divan said the government “hurried too much, leaving weak spots in the Bill”.“But the former Chief Justice of India V.N. Khare, who was part of the high-level consultations held on the Bill, said there was no such requirement of taking an “advisory opinion” from the judiciary.
Senior advocate Raju Ramachandran agreed, saying that “it is not the job of the judiciary to advice the Legislature on how to draft a Bill”.
He said the Bill indeed saw long discussions and a consensus. “The dialogue over judicial appointment law has been going on since last year. It was started by the previous government and was renewed by the new one. Eminent lawyers were consulted. There has been consensus across the political spectrum,” he said.