One of the country's best known jurists - Fali S Nariman - considers the passage of the constitution amendment bill for setting-up the judicial appointments commission by the Rajya Sabha, as a "step in the right direction".
The veteran lawyer, however, has reserved his judgment on how well the proposed commission which seeks to replace the existing system of country's top five judges (Supreme Court collegium) recommending names for appointment of judges to the Supreme Court and high courts, will work. Excerpts
Should the 120th Constitution Amendment Bill have been referred to a parliamentary standing committee before being passed in the Rajya Sabha, as demanded by many MPs?
I do not think so — since both the government and the Opposition (in fact all political parties) were united in criticising the functioning of the existing collegium system of appointing judges.
There would have been a 'hiatus' created if the passing of the 120th Constitution Amendment Bill had received the President's assent, (without a new system being brought into place by law) but an assurance was given by the law minister on the floor of the House that this bill would not be submitted to the President until the complementary Judicial Appointments Commission (JAC) Bill was passed.
Constitutionally speaking until Presidential assent is given to it, no bill passed by Parliament, not even a constitutional amendment bill, can ever become effective as law.
This means that for a year or more the existing system of selection of judges will continue until the constitutional amendment bill and the JAC Bill, receives the President's assent and the constitutional amendment bill is also ratified by the requisite number of states as required by the Constitution.
Is the decision to refer only the JAC Bill to the standing committee correct?
I think it is. The JAC Bill for the first time sets out an entirely new method for selection (and appointment) of judges of the higher judiciary and therefore does need an in-depth look. It has been rightly referred to a select committee for that purpose.
Will the new system be better than the one it has attempted to replace?
Alas, only time will tell. The trouble with different methods being adopted for appointments to the higher judiciary so far — beginning from (first): primacy of the view of the Chief Justice of India (CJI) to (second): the last word on appointments is with the government, to (the third one being proposed now) appointments only through a JAC — is not so much in the methodology adopted, but how well each system is implemented.
The collegium system was initially good in intent but not in interpretation and it faltered in execution.
How well will the JAC work when constituted?
Frankly, I don't know. But we must hope and expect that appointed constitutional functionaries will exercise their responsibility — with integrity and transparency. But, only time will tell — and so, I keep my fingers crossed!