Parliament approves historic law to overturn collegium system

Overcoming resistance by the judiciary, Parliament today took the much-delayed historic step of clearing two bills to have a new mechanism to appoint judges to higher courts and scrap the collegium system which has been under severe criticism.

Rajya Sabha approved with overwhelming majority the 121st Constitution Amendment Bill along with the National Judicial Appointments Commission Bill, 2014, a day after Lok Sabha gave its nod to the measure with a crucial amendment of the opposition Congress being accepted by the government.

The Constitution Amendment Bill was passed with 179 votes in favour among 180 votes polled while noted lawyer Ram Jethmalani abstained. The Appointments Commission Bill was approved by voice vote.

Approval of the 245-member Upper House to the measure is significant as ruling NDA is in a minority there. The two measures were taken up separately after questions were raised by members over legislative competence of the House amid apprehensions that it could be struck down by the judiciary as 'ultra vires'.

A determined government asserted that Parliament is supreme and competent enough to enact laws and that it has no intention of transgressing on independence of the judiciary through the new law.

Law Minister Ravi Shankar Prasad underlined that the new measure of appointing judges to Supreme Court and High Courts will come into effect only after ratification of the Constitution Amendment Bill by 50 per cent state assemblies. The process could take up to eight months. After ratification, government will send it to the President for his approval.

With this step, the collegium system of judges appointing judges will be changed with a six-member Commission headed by Chief Justice of India making the appointments and transfers.

There have been several attempts to overturn the 20-year-old collegium system in the past, including by the previous NDA and UPA governments. The effort finally fructified on the last day of the first working session of Parliament under the new government.

To bring Opposition on board, government had yesterday dropped a controversial provision that required unanimity in recommendation if President seeks reconsideration.

The amendment dropped the provision requiring unanimity in the Commission's recommendation if President had referred the earlier recommendation back to the collegium for reconsideration.

The Constitution amendment bill will grant Constitutional status to the NJAC and its composition. The NJAC Bill, passed along with the statute amendment bill, lays down the procedure to be adopted by the commission for elevation of Supreme Court judges and transfer and posting of Chief Justices and other judges of the 24 High Courts.

Under the statute amendment bill, Chief Justice of India will head the NJAC. Besides the CJI, the judiciary would be represented by two senior judges of the Supreme Court. Two eminent personalities and the Law Minister will be the other members of the proposed body.

In his intervention, Finance Minister Arun Jaitley, a noted lawyer, said since there is a marginal role of the executive in the current system, "the effort is now to restore what is the spirit of the original Constitution" with checks and balances in place.

Prasad rejected the opposition charge that the measure was being brought in haste, saying the exercise has been going on for two decades during which several committees have recommended for changing the collegium system.

"Why is Parliament wary of using its powers? Parliament must have full trust in the ability of Parliament to pass the law," he said. Prasad said the power of appointing a judge rests with the President of India. "This House respects the independence of the judiciary and this House also respects the power of Parliament," he said.