New Delhi:
Former Union Law Minister Ashwani Kumar said on Sunday that judicial appointments have time to replace the current collegium system and “the process of public opinion is moving firmly” in favor of an alternative mechanism for appointments of judges.
He also asked the Supreme Court to implement a strong in-house system to address the issues that make the judiciary sick with the allegations directed to the judiciary.
In a special interview with PTI, the former Union Law and Justice Minister spoke in length on several controversial issues, such as within the mechanisms for the judiciary, judicial appointments and the National Judicial Appointments Committee (NJAC), and the laws passed by Parliament were rapidly challenged in the courts.
“The time for NJAC matured in 2014-15 when it was first looted and kept to vote. It is definitely cooked today. And now, I am sure that the processes of referendum are moving firmly in favor of an alternative mechanism for appointment of judges. It can be on the lines of the proposed NJAC, it may be better.
The former Congress leader said that the government is completely within its rights to bring a revised constitutional amendment for the appointment of judges that will satisfy the judicial inquiry.
It was during Mr. Kumar’s tenure as the Law Minister that the NJAC bill was drafted under the UPA Rule, but in October 2015, it was later passed in a revised form after the NDA accepted power only by the Supreme Court.
Why did he believe that it was time to bring for NJAC, Mr. Kumar said that he had a serious issue with the validity of the decision, under which NJAC was killed as unconstitutional, even though it had “the supreme will and the majority of the Parliament”.
He said that the main reason for the court to strike on the NJAC system was that the NJAC, the representatives of the government and the eminent persons appointed by the government, could be compromised on the independence of the judiciary.
“In my thoughtful approach as a lawyer, and it is the idea that Justice J Chelameswar takes a minority decision in that case, to increase the principle of independence of the judiciary between the methodology of the judiciary and the methods of appointment of judges, which he is a guilty.”
Mr. Kumar said, “Where can we get the estimate that the government will always recommend the judges who are first class and it is estimated that the judges will always choose the best judges,” Mr. Kumar said, the appointments made by the government are one of the best.
He said, “It is an flawed expansion of the principle of judicial freedom to suggest that the committee has a government candidate or an executive representative on it for appointment of judges, the independence of jurisdiction will be affected,” he said.
Quoting a famous American judge, he said, “People believe in judges who have lost faith in people and their representatives”.
However, he feared, “If you start pulling a nail between the judiciary and the executive in the case of high judicial appointments, one day is not far when institutional struggle will occur and it would be absolutely fatal to the rule of constitutional democracy.” On the controversial laws passed by the Parliament, including the Waqf Amendment Act, the courts are rapidly challenged, Mr. Kumar said that it is one of the issues of theory that it is one of the issues of the nation and its political and judicial processes to address the near future, while given that almost every major questions of political importance and political influences are away from the Supreme Court.
“This can be in line with the political executive of that time, which can be in accordance with the difficult questions in order to be organized by the Supreme Court or it can also be in line with the opposition to challenge every measures of the government in the Supreme Court, but it is unfair to the judiciary as an institution.” The judiciary has repeatedly stated that it is not part of the judicial work to enter the political function, saying that essentially political questions are to be decided in the court of the people.
Therefore, when the judiciary is asked to sit in a decision on the great political moment issues, questions are being raised whether the judiciary is increasing its remit, he saw.
“The power of judicial review inherent by the Constitution in the judiciary was essentially to protect citizens in protecting their fundamental rights.
He said, “This was not the intention of being an instrument for the judiciary to reduce the will of the people,” he said, seeing that the ninety -nine constitutional amendment that was brought to the NJAC, when it was killed, was supported in Parliament, supporting the “exaggeration” in Parliament.
“Can you overcome the main desire of people from constitutional democratic procedures in some time?
“But the Supreme Court cannot use that role to increase its own remit at the expense of the remit of the Parliament. So these questions are very relevant questions and will have to be addressed.
The former Law Minister insisted, “And you must have seen that voices are being raised inside the Parliament.”
Mr. Kumar called the incident of recovery of cash from the residence of a High Court judge in Delhi as “unfortunate” and said that the Supreme Court would have to make its in-house processes more just and balanced to protect the judges from trivial allegations and provide an effective prevention mechanism.
Also, he said, “I don’t think it is appropriate to say that this incident is being used by the government to grab the power of judicial appointments.” He said that the incident has ignited a debate about the process of judicial appointments.
“I believe that the Supreme Court is a suspicious practice of judicial review power unconstitutionally as a striking of NJAC by the Supreme Court, given that the Constitution Amendment proposal was passed by Parliament with more than two members and passed with more than two members, which reflects the sovereign willpower,” he said.
Mr. Kumar said that the cash recovery case has put a shadow on the institutional integrity of the judiciary and even in the early stages of investigation, the judge “collaps and condemn”.
He said, “It is absolutely true that the unfortunate incident has put a long shadow on the institutional integrity of the judiciary, but it has also given birth to many fundamental principles of constitutional jurisprudence,” he said.
He said that in this particular case, even when the initial steps were going on in the investigation process, the judge collapsed and condemned, both in the media and to withdraw work on the basis of punitive transfer to Allahabad and to withdraw work from them.
“I think a time has come for the Supreme Court to review the in-house process, to make it more balanced, and to be able to end its purpose, to save the judges from trivial allegations as well as to provide an effective prevention mechanism to address sick issues of the judiciary,” he said.
(Except for the headline, the story has not been edited by NDTV employees and is published by a syndicated feed.)
