New Delhi: The Supreme Court’s decision to strike down a constitutional amendment that sought to give the executive a say in the selection of top judges is continuing to draw criticism.
Finance minister Arun Jaitley, a lawyer, wrote a stinging critique on Sunday on the apex court’s judgment on Friday that the National Judicial Appointments Commission (NJAC) was unconstitutional.
Jaitley wrote that in bringing back the collegium system for selection of Supreme Court and high court judges to protect the independence of the judiciary, the apex court had forgotten to consider the larger constitutional structure—that of Parliamentary democracy which represents the “will of the sovereign."
Lawyer and Congress spokesperson Abhishek Manu Singhvi, clarifying that it’s not the party’s stand, said the NJAC judgment was an example of a legally and constitutionally erroneous ruling, almost quoting Jaitley.
Immediately after the judgment on Friday, Singhvi said: “Having seen the good and bad of the system we have in place, I think that the NJAC should have been given a chance. In my personal view, the judgment is disappointing as passing of the NJAC would have helped to set up a new system."
Singhvi, in a column in The Times of India, wrote while the NJAC called for a more broadbased approach to judicial appointments, sought to address the criticisms of the collegium system (where a small group of five senior-most judges of the apex court appoint judges), the court struck down the law on this inclusive nature of the NJAC.
“It is this very virtue—broadbasing and inclusion—which the majority verdict treats as the NJAC’s biggest vice, holding that any dilution of the judicial element per se violates judicial independence and hence the basic structure of the Constitution. India is perhaps the only nation which has this hypnotic and mesmeric faith in the infallibility of judges and in the gross and heightened fallibility of non-judges, howsoever eminent," Singhvi wrote.
Think tank Vidhi Centre for Legal Policy’s executive director Arghya Sengupta, in The Hindu, quoted paragraphs from the judgment to argue that the court had overstepped its mandate.
In an “open letter to the Supreme Court judges", Sengupta, writing as a citizen of India, said that the court’s verdict showed a deep “mistrust of the government", “lack of respect for the people of India" as well as “ unquestioned faith in your own absolute competence as judges."
Earlier, lawyer Harish Salve had called the reasoning of the court fallacious, in an interview on India Today TV. “This is a method for checks and balances, why are we running away from it?," Salve asked.
Salve told Mint on Friday that he was “deeply disappointed with the judgment". “I have always been of the opinion that judges should not get to appoint judges of the higher judiciary. This happens nowhere in the world," he added.
The Supreme Court collegium, meanwhile, has started functioning again, according to the Indian Express. According to the report, chief justice of India H.L. Dattu has called a meeting of the collegium for making appointments to the high courts.
According to news agency Press Trust of India, there are 400 vacancies in high courts; full-time chief justices have to be appointed in eight high courts.
Apurva Vishwanath and Priyanka Mittal contributed to this report.