Ex Law min Kapil Sibal questions constitutionality of judicial appointments bill

Former Law minister and Supreme Court lawyer Kapil Sibal has spoked out against the National Judicial Appointments Commission Bill, 2014 that was introduced in the Lok Sabha yesterday, saying that the constitutionality of the bill should be a point of concern.

Sibal told The Indian Express , “The main issue relates to independence of the judiciary. This Bill allows two members of the proposed NJAC to scuttle the appointment of an individual. How can you give veto power to any two members of the NJAC? Such a provision can be misused.” He adds that since one member can veto any appointment, the executive may misuse this power.

The bill in its current format will do away with the collegium system of appointment of judges to the higher judiciary and instead set up a National Judicial Appointment Committee, which will be headed the Chief Justice of India. Two senior judges of the Supreme Court, two eminent personalities and the Law Minister will be the other members of the proposed six-member body. The two eminent personalities will be selected by a collegium of Chief Justice of India, the Prime Minister and the Leader of the Opposition in Lok Sabha or the leader of the single-largest opposition party in the Lower House. They will have a tenure of 2-3 years.

The government will bring another bill defining the procedures of the proposed Commission along with a constitutional amendment bill which will amend Articles 124 and 217 of the Constitution relating to the appointment of Supreme Court and High Courts judges. It should be noted that a constitutional amendment bill requires two-thirds majority, while an ordinary bill requires a simple majority.

Earlier reports had indicated that the government was keen to pass this bill during the current session of the Parliament and has been holding talks with the opposition.

Sibal also told the paper, “The judiciary would be called upon to look at the entire legislation, clause by clause, see if it meets the criteria of independence of the judiciary, the foundation stone of a vibrant democracy."

On being asked if this was the same bill as the one he had wanted passed as Law Minister, Sibal pointed out that his draft did not give any veto powers to any member of the judicial commission.

Meanwhile, the Congress has also states its opposition to the veto provisions in the bill. “There are issues with the veto provision… I have said everything now by saying this… There are two-three very crucial changes which will affect the independence of judiciary,” party spokesperson Abhishek Singhvi said.

The bill brought by the NDA government provides that if two members of the National Judicial Appointments Commission (NJAC) do not agree, then the appointment will not go ahead. It also provides that the president can send back the recommendation of the panel back for reconsideration. But if the panel reiterates the recommendation “unanimously”, the president will have to go ahead with the appointment.

A senior Congress functionary, speaking on condition of anonymity told PTI, “Since the law minister is also a member of the NJAC to appoint judges, he may object to anybody’s election at the primary stage even when five other members are in favour of that person. And if he continues with his objection after the President sends back the file for reconsideration, then the particular judge cannot be appointed as it will then require a ‘unanimous’ recommendation by the NJAC.”

With inputs from PTI