The governments resolve to scrap the collegium system received a shot in the arm with parties like BSP, CPI, JD (U), RJD and BJD choosing to side with it for putting in place a new mechanism for judicial appointments.
Sources told The Indian Express that the government is also engaged in consultations with the Congress to push the National Judicial Appointment Commission (NJAC) Bill through. It has to get the Congress on board to ensure its passage in the Rajya Sabha. The Congress, according to the sources, has indicated to government intermediaries that it could back the constitutional amendment if it was the same as formulated by the previous UPA regime.
Parliamentary Affairs Minister M Venkaiah Naidu told reporters that the Bill has not been listed yet. He said the last four days of the session August 11 to 14 will be used for clearing official business. The NJAC Bill could be lined for consideration by the two Houses then.
According to sources in the government, consultations on the Bill happened at two levels one when the government called a high-level meeting on July 28 when Law Minister Ravi Shankar Prasad and Finance Minister Arun Jaitley had deliberations with eminent jurists and retired Chief Justices of India.
In the second round of consultations, the Law Ministry wrote to all political parties, soliciting their views on the objectives and contours of the NJAC, which seeks to replace the collegium system with a mechanism where the Executive also have a say in appointments of judges.
The government sources told The Indian Express that both forms of consultation have rendered unanimous view that the collegium system needs to change in the larger interest of the institution and for greater transparency.
There is a consensus that the Judicial Appointments Commission must be considered as an instrument to replace the existing collegium system, obviously without compromising with the independence of the judiciary or giving the Executive any superseding authority, said a top source.
Most political parties, according to the source, have written back to the Law Ministry, clearly stating that the system for judicial appointment needs to change to usher in greater transparency and bringing in certain objective criteria for appointments. Law Ministry officials are currently busy compiling the finer points of the replies received from the political parties, to present a united front when the bill is brought to Parliament.
The Cabinet, after taking into account these replies, on Wednesday cleared the constitutional amendment bill to provide for NJAC.
According to the proposed law, the NJAC will headed by the Chief Justice of India. Besides the CJI, judiciary would be represented by two other senior judges of the Supreme Court. The Law Minister and two eminent personalities will be the other members of the proposed six-member body. Under the new draft, one of the two eminent persons will belong to communities of SC, ST, OBC, minorities or will be a woman.
The eminent persons having a tenure of three years will be picked by a high-power committee comprising the Prime Minister, CJI and leader of opposition or the leader of the largest party in opposition. This implies the participation of the Congress in the selection process irrespective of its floor leader being or not being recognised as the leader of opposition in the Lok Sabha.
The NJAC would be given a constitutional status to ensure that any future government does not tweak the composition by way of an ordinary legislation. While the constitutional amendment bill requires two-third majority, an ordinary bill requires a simple majority.
A provision has been added that if two members of the proposed Commission are opposed to an appointment, the appointment will not come through. This will avoid any confrontation within the body.