A Setback To Parliamentary Sovereignty: Modi Govt Reacts To SC Striking Down NJAC

17/10/2015 8:25 AM IST | Updated 15/07/2016 8:25 AM IST
Hindustan Times via Getty Images
NEW DELHI, INDIA - APRIL 17: Union Minister for Communications and IT Ravi Shankar Prasad during an exclusive interview at HT Office on April 17, 2015 in New Delhi, India. (Photo by Arvind Yadav/Hindustan Times )

New Delhi -- Making its disagreement with the Supreme Court's decision to strike down National Judicial Appointments Commission (NJAC) very clear, the government today said the verdict is a "setback to parliamentary sovereignty".

Union Minister Ravi Shanakar Prasad, who had piloted the NJAC bill in Parliament as the law minister, said the order has raised questions over the sovereignty of Parliament, which had unanimously passed the legislation. He had that the legislation had received ratification from 20 state assemblies.

"While holding very dearly the principle of independence of judiciary, I regret to say that parliamentary sovereignty has received a setback today... Questions have been raised on parliamentary sovereignty," he told a press conference here, adding that the government will decide its future course of action after reading the 1030-page judgement and consultation.

Highlighting the support the bill enjoyed, he said it was a "unique moment in the Indian polity" when all political formations supported the setting up of NJAC to replace the 22-year-old collegium system, which has now been revived by the apex court.

Also read: Why Judges Junked Judicial Selection Panel

Prasad wondered whether "judges appointing judges is the only way of judicial independence", as decided by the Supreme Court today.

Noting that the executive had a greater role in appointing judges before 1993 when the collegium system was introduced, the minister raised a poser, asking if the judges appointed during that era lacked in any way as he cited the names of some of the finest judges, including M N Venkatachaliah and V R Krishna Iyer, appointed under that system.

He also insisted that the judiciary had "domination" in the NJAC and executive had only one member in it.

With this statement, the government seems to have locked horns with the highest judicial body in the country. However, it must be pointed out that the country's government's strife with the judiciary is an old one.

A Times of India article points out how, like Prasad mentions, in the past, the power to appoint judges did rest with the government headed by the President. "In the early decades after the adoption of the Constitution, judicial appointments were the prerogative of the government with judges being designated on the recommendation of the President before politically tainted decisions set the stage for the judiciary snatching the right from the executive," the report says.

The article explains how the Emergency and it's aftermath, the various scandals like Bofors during Rajiv Gandhi's regime and then incidents like the Babri Masjid demolition rapidly eroded the legitimacy of the political class' right to claim 'moral authority' on the appointment of judges.

"In 1993, when the Supreme Court ruled that primacy in appointing judges vested with the judiciary, the Rao government was still reeling under the traumatic aftermath of the Babri demolition as it fended internal challenges and the opposition," the article states. The UPA too had attempted to pass the bill but couldn't secure the support of the opposition BJP, thanks to the many corruption scandals it was embroiled in.

While rejecting the NJAC, Justice Madan Lokur reasoned, "I hold that the Article 124A as introduced in the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014 impinges on the independence of the judiciary and in the matter of appointment of judges (which is a foundational and integral part of the independence of the judiciary) and alters the basic structure of the Constitution. It is accordingly declared unconstitutional."

(With inputs from PTI)

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