Some
of the Bills enacted by or pending in Parliament and some in the draft form
convey the Modi government’s contempt for norms and disregard for workers and
farmers.
IN
its first year in office, the Bharatiya Janata Party (BJP) led National
Democratic Alliance (NDA) government secured the passage of 30 non money Bills
in Parliament. While the number of Bills passed in just one year may appear creditable,
some of them have the potential to be serious irritants in the future.
The
National Judicial Appointments Commission (NJAC) Act and the Constitution 99th
Amendment Act are two legislative measures that were passed by Parliament,
ratified by the required number of State Assemblies and duly notified after
obtaining presidential assent.
The Acts have, however, not come into force because the NJAC could not be
formed as the Chief Justice of India (CJI), Justice H.L. Dattu, refused to join
it. Justice Dattu, an exofficio member of the NJAC, declined to participate in
the selection of two eminent persons for the six member commission until the
Supreme Court disposed of the petitions challenging the validity of the two
Acts.
This
stalemated the formation of the commission as the two eminent members have to
be selected by a committee comprising the Prime Minister, the leader of the
single largest opposition party in Parliament, and the CJI. The CJI, two senior
judges of the Supreme
Court,
and the Union Law Minister are the other members of the NJAC. As the hearing of
the petitions challenging the validity of the two Acts before the Supreme
Court’s five judge Constitution Bench revealed, the CJI’s refusal to
participate in the selection is just one of the several inherent problems in
the two Acts that the government did not anticipate during the drafting and
passage of the Bills. There was nothing to prevent Justice Dattu from joining the
NJAC as the Supreme Court refused to stay the operation of the Acts. The CJI
appears to have refused for reasons of propriety: as the head of the judicial
family, he did not want to be seen as even remotely influencing the course of
the hearing before the bench.
After
all, if the bench were to strike down the two Acts for their noncompliance with
the basic structure of the Constitution, it is not just the two eminent persons
but the CJI himself who would suffer the embarrassment of having been briefly
associated with an unconstitutional body to select judges. As the petitioners
pointed out several aspects of the Acts that subverted the independence of the
judiciary and the basic structure of the
Constitution by depriving the judiciary the primacy it enjoyed in the
appointment of judges, the government quickly took cover and referred the case
to an 11judge bench
for “an authoritative pronouncement” on the issue. The thrust of the dispute
between the petitioners and the government was whether the judgment of the
Supreme Court’s nine judge bench in the Second Judges case (1993), which led to
the creation of the collegium to appoint judges, required to be reconsidered as
a preliminary issue by a larger bench before the current bench could decide on
the validity of the NJAC. The government and other respondents (mainly the BJP
ruled States) argued that referral of the case to an 11judge bench was a prerequisite,
while the petitioners are opposed to any such referral.
The
bench declined the government’s plea for referral and deferred the hearing to
June 8.
The
government’s handling of the two pieces of legislation exposed another serious
crisis: the Constitution was left with no mechanism to appoint judges and even
extend the tenures of the Additional Judges in the High Courts as the
preexisting collegium system was defunct with the notification of the two Acts
and the non-formation of the NJAC. As if this is not enough, the government and
the judiciary will face a continuing void in the appointment process as the
preexisting collegium system cannot simply spring back to life if the court
strikes down the two Acts as unconstitutional. In the event of such a
situation, the government may have to introduce a fresh piece of legislation
and ensure its passage and notification.
Legal
observers blame the Modi government for the lack of diligence in the drafting
and passage of the two Acts. According to them, the current crisis could have
been averted had the opinion of the Supreme Court been sought—under Article 143
of the Constitution (power of the President to seek the advice of the Supreme
Court)—on the validity of the two Bills before they were introduced in Parliament.
But if the attitude of the government in the Supreme Court is any indication,
it does not seem to be in favour of an early resolution of the crisis. Any
delay in adjudicating the challenges to the two Acts will only weaken the judiciary
further, with vacancies remaining unfilled.@frontline.in
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