Mr Kumar had drafted the original NJAC Bill when he was the Law Minister during the UPA government. The bill was later passed in an amended form after the NDA came to power, but the Supreme Court struck it down in 2015, calling it unconstitutional.
Former Union Law Minister Ashwani Kumar has said that the time has come to replace the current collegium system for appointing judges in India. He feels that public opinion is now strongly in favour of creating a new and better system.
In an interview with media, Mr Kumar shared his views on many important matters related to the judiciary. These include judicial appointments, the National Judicial Appointments Commission (NJAC), and the increasing trend of laws passed by Parliament being challenged in court.
Mr Kumar said, “The time for NJAC was ripe in 2014-15 when it was first mooted and put to vote. It is certainly ripe today. And now, I am convinced that the processes of public opinion are moving robustly in favour of an alternate mechanism for the appointment of judges. It could be on the lines of the proposed NJAC, it could be something better.”
He added that the government is fully within its rights to bring a revised constitutional amendment that will meet judicial approval.
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Background of NJAC
Mr Kumar had drafted the original NJAC Bill when he was the Law Minister during the UPA government. The bill was later passed in an amended form after the NDA came to power, but the Supreme Court struck it down in 2015, calling it unconstitutional.
Mr Kumar said he strongly disagreed with the Supreme Court’s judgment which cancelled NJAC, even though it had the support of the majority in Parliament.
According to Mr Kumar, the court rejected NJAC mainly because it included government representatives, which the court felt would hurt judicial independence.
However, he disagreed with this logic and said, “In my considerate view as a lawyer, and this is the view that the minority judgement of Justice J Chelameswar takes in that case, there is no equivalence between the independence of the judiciary and the manner and mode of appointment of judges to extend the doctrine of the independence of the judiciary to the mode and manner of appointment of judges is a flawed extension of the doctrine.”
He further questioned the assumptions made by the system, saying, “Where can we derive the presumption that the government will always recommend judges that are first class and where is the presumption that the judges will always select the best judges,” and pointed out that some of the best judges in the past were appointed by the government.
He added, “It is a flawed extension of the doctrine of judicial independence to suggest that in case the committee for appointment of judges has a government nominee or an executive representative on it, the independence of the jurisdiction would be impacted.”
Quoting an American judge, he said, “For how long will the people have faith in the judges who have lost faith in the people and their representatives”.
Mr Kumar warned that keeping the government completely out of judicial appointments could create bigger problems.
He said, “If you start drawing a wedge between the judiciary and the executive in the matter of high judicial appointments, a day is not far off when there will be an institutional conflict and that will be absolutely fatal for the governance of constitutional democracy.”
Mr Kumar also spoke about how many laws passed by Parliament are increasingly being challenged in court. He said that this issue must be addressed soon, as it affects both politics and the judiciary.
He explained that sometimes the government may want the court to decide on difficult issues, or the opposition may prefer to challenge everything in the courts.
However, “it is unfair to the judiciary as an institution.”
He noted, “The judiciary itself has repeatedly said that it is not part of the judicial function to enter into the political thicket,” and added that political matters should be resolved by the people in elections, not by judges.
He further said, “Therefore, when the judiciary is called upon to sit in judgement over issues of great political moment, questions are being raised about whether the judiciary is unduly enlarging its remit.”
Mr Kumar reminded that judicial review should be used to protect fundamental rights, not to block the will of the people.
He stated, “The power of judicial review which was vested by the Constitution in the judiciary was essentially meant to protect the citizens in the defence of their fundamental rights. It was not intended to be an instrument for the judiciary to nullify the will of the people.”
He also said, “At some point in time can you take away the majoritarian will of the people from the constitutional democratic processes? You cannot. At the same time, you have to temper the exercise of the sovereign will by principles of accountability enshrined in the Constitution.”
He stressed, “But the Supreme Court cannot use that role to progressively keep enlarging its own remit at the cost of Parliament’s remit. So these questions are very pertinent questions and they have to be addressed.”
Finally, he added, “And you would have seen that voices are being raised inside Parliament that this can’t go on.”
Talking about the recent case where cash was recovered from a Delhi High Court judge’s residence, Mr Kumar said it was “unfortunate“. He said the Supreme Court should improve its internal process to protect judges from false charges, while also ensuring there is a proper way to investigate serious issues.
He clarified, “I do not think it is fair to say that the incident is being used by the government to grab the power of judicial appointments.”
But he admitted that the incident has raised serious concerns and opened a bigger debate about how judges are appointed.
Mr Kumar strongly felt, “I believe that the striking down of the NJAC by the Supreme Court as unconstitutional is itself a questionable exercise of the judicial review power considering that the constitution amendment motion was passed by Parliament with a more than two thirds majority of members present and voting, reflecting the sovereign will.”
He added, “It is absolutely true that the unfortunate incident has cast a long shadow on the institutional integrity of the judiciary, but it has also given rise to many fundamental principles of constitutional jurisprudence.”
Mr Kumar also pointed out that the judge involved in the case was being unfairly treated even before the investigation had fully started.
He said, “It is absolutely true that the unfortunate incident has cast a long shadow on the institutional integrity of the judiciary, but it has also given rise to many fundamental principles of constitutional jurisprudence.”
Finally, he recommended, “I think a time has also come for the Supreme Court to review the in-house procedure to make it more just, to make it more balanced, and to be able to subserve its purpose, which was to protect judges from frivolous allegations and at the same time to provide an effective redressal mechanism to address the ailing issues of the judiciary.”
