Fali Nariman says judges appointment bill hits at the root of judicial independence

New Delhi: Noted jurist Fali S Nariman slammed the two legislations that seek to overturn the present collegium system of appointment of judges, saying they hit at the root of judicial independence and may be struck down by the Supreme Court.

Nariman, a former nominated member of Parliament, has said many lawyers including him will challenge the legislations in the Supreme Court.

"...the independence of the judiciary is now the cornerstone of the Constitution. And anything that is done which damages it is anathema and the people who decide are the judges of the Supreme Court," he told Karan Thapar on Headlines Today on Thursday.

"Many lawyers including myself will move in that direction," he said, suggesting that he may challenge the bills, which were passed by Rajya Sabha on Thursday after Lok Sabha adopted them on Wednesday.

Nariman, who was among the legal luminaries consulted by Law Minister Ravi Shankar Prasad on the issue, faulted the bills on several counts.

He said he was not happy at all with its composition of the proposed National Judicial Appointments Commission, which will have only three judges out of six members. Also, he said, the fact that it gives veto power to any of the two members to scuttle any recommendation made by a majority is not acceptable.

Nariman also expressed his anguish over the bills' provision, which said two eminent persons in commission will be selected by a group of the Prime Minister, the leader of second largest party and the Chief Justice of India.

"Eminent persons are chosen in political sphere... I am sorry that this (bills) should have been pushed through in this fashion," he said.

Prasad, he said, might mot have been aware of the final contents of the bill because he did not bring up these provisions in his meeting with him and other senior lawyers and former judges.

"I am sure the Law Minister did not intend all this. He never said all this. We never knew it was going to be the position. What was the tearing hurry? Why should it be introduced here and now," Nariman said.

He said that their "distinct impression" after the meeting, which took place in the last week of July, was that this bill was not going to come up in the current session.

Suggesting that the current bills were pushed down the throat of Prasad, he said he did not believe that the Law Minister misled them and he knew him too well.

"I personally think there has been some super important event that has occurred which has left all of as flummoxed...some new development in the party itself of which none of us are aware," he said.

Nariman criticised the NDA government for "ignoring" the recommendations of the Venkatachaliah Commission which, he said, had asserted that there must never be an "outvoting" of the judges in the Commission and eminent persons should be chosen by the President in consultation with the Chief Justice of India.

The Venkatachaliah Commission was set up by the Atal Bihari Vajpayee-led NDA government to review the working of the Constitution.

Asked if he suggested that there should have been at least four judges out of the six members, the constitutional expert said "absolutely, absolutely".

"That (not a preponderance of judges) goes against the very grain of the Constitution... the independence of the judiciary. That's a very basic, important point about our Constitution," Nariman said.

Asked if he thought the bills were "half-baked" and not "properly thought through", he said "absolutely. It should have been (thought through). They should have followed the recommendations of the committee they had themselves appointed".

Criticising the veto power of any of the two persons in the proposed Commission, he said if there is a serious objection to a particular person chosen by a majority of the Commission, then the proper thing to do is the President would decide this question in consultation with CJI. "You cannot omit the CJI."

He hinted the tabling of the bills in this session were an afterthought and they were "never intended to be brought at this time".

"I expected that at least if this was going to be a bill which was to be projected in a couple of weeks of time from the meeting, it would have behoved everybody if we had got a copy of it in advance so that we could have at least commented on it," Nariman said.