SC verdict on NJAC: Government ‘surprised’, mixed reaction from legal fraternity

New Delhi: The Supreme Court verdict quashing the new law on appointment of judges was on Friday dubbed by a "surprised" government as a "setback to parliamentary sovereignty" while it drew mixed responses from the legal fraternity and political parties.

Expressing surprise over the order striking down the law to appoint judges to the higher judiciary, the government also questioned the transparency of the previous collegium system.

Reflecting government's disagreement with the verdict that brings back the collegium system after the National Judicial Appointments Commission (NJAC) Act was struck down as unconstitutional, attorney general Mukul Rohatgi called it "flawed".

"According to me the verdict is flawed. The verdict has ignored the unanimous view of Parliament and the will of more than half the state legislatures," Rohatgi said.

Congress reacted cautiously to the verdict, saying that the collegium system, which will now be restored is "shrouded in secrecy".

Its chief spokesman Randeep Surjewala, however, used the verdict to target the Narendra Modi government saying the judgment implicitly reflected "lack of confidence" in the government, which has "eroded" institutional autonomy and constitutional safeguards over last 17 months.

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Welcoming the verdict, former Chief Justice of India Altamas Kabir and former Supreme Court judge Justice AK Ganguly expressed pride in the Indian judicial system saying the decision restored independence of judiciary, a view not shared by former Delhi high court judge Justice RS Sodhi, who said the verdict shows lack of trust on Parliament's maturity.

Union minister Ravi Shankar Prasad, who had piloted the NJAC Bill in Parliament as the law minister, said the order had raised questions over the sovereignty of Parliament, which had unanimously passed the legislation that also received ratification from 20 state assemblies.

"While holding very dearly the principle of independence of judiciary, I regret to say that parliamentary sovereignty has received a setback today ... Questions have been raised on parliamentary sovereignty," he told a news conference here, adding that the government will decide its future course of action after reading the 1,030-page judgment and consultations.

Prasad also wondered whether "judges appointing judges is the only way of judicial independence", as decided by the Supreme Court on Friday.

"We are surprised by the verdict..," law minister DV Sadananda Gowda told reporters in Bangalore.

Criticizing the collegium system, former attorney general Soli Sorabjee and senior advocate KTS Tulsi said it was already acknowledged that it was a failed system and that when Parliament unanimously adopts a law, it cannot be called interference in independence of judiciary.

"Does this law really strike on the independence of the judiciary, I don't think so. There were a few things which could have created some problems like appointment of eminent persons and some other provisions but those could have been read down," Sorabjee said.

However, ex-law minister HR Bhardwaj strongly opposed the NJAC saying it "entitled outsiders to participate in appointments. Judges are always recommended by judiciary and Centre is only consulted."

Echoing the former minister's view, senior advocate Indira Jaising and lawyer Prashant Bhushan hailed the decision saying it upheld the fundamental constitutional provision which maintained the separation between judiciary and executive and cautioned that verdict be not polarized.

Bhushan, who had represented one of the petitioners against the NJAC, said that judicial independence is backbone of the Constitution and the Act could have influenced that.