Claiming that there is no constitutional provision for the review or appeal of a constitutional amendment, Vice President Jagdeep Dhankhar on Tuesday met leaders of all parties to discuss the issue of judicial accountability and a mechanism for appointment and transfer of judges , people aware of the details said.
The hour-long meeting came in the wake of a huge amount of cash being recovered from the residence of Delhi High Court judge Yashwant Varma, a case that is now being probed by a committee constituted by the Supreme Court.
According to the people cited above, Dhankhar urged leaders to find a solution to the bigger problem of judicial accountability. “He exhorted leaders to find ways of addressing the need to fix accountability and ensure transparency in the judiciary. He referred to the National Judicial Appointments Commission (NJAC) and how it was struck down by the Supreme Court, and spoke about the need to re-establish the superiority of Parliament,” said one person.
In 2014, the NDA government passed the National Judicial Appointment Commission (NJAC) Act, setting up an alternative system for the appointment of judges to constitutional courts which also proposed a greater role for the government in the process. But, in 2015, the Supreme Court ruled that the law was unconstitutional as it sought to tinker with the independence of the judiciary.
Leader of the Opposition and Congress president, Mallikarjun Kharge is learnt to have concurred on the need to ensure accountability and transparency in judiciary. “He said it was incumbent on the government to come up with a proposal on how to address the concerns…including the NJAC that was passed by Parliament with unanimity, but struck down by the court,” the first person added.
Leader of the House JP Nadda is learnt to have said there a need to have wider discussion on the issue. “He said there are two parts to the issue, one is the allegation against Justice Varma that is already being looked into, but the larger issue is of lack of transparency and accountability (in judiciary); he said he would have wider discussions among NDA leaders,” a second person said.
This person said there was no specific mention of how a mechanism like NJAC can be revived, although concern was expressed about judicial appointments and transfers.
To be sure, the Supreme Court can also review a constitutional amendment.
“Floor leaders also mentioned the pending notice for a motion of impeachment against Allahabad High Court judge, Justice Shekhar Kumar Yadav, for his alleged hate speech. The chairman said he is in the process of verifying the signatures on the notice,” the second person said.
Earlier while addressing the lawmakers in the Rajya Sabha on Tuesday, Dhankhar said, “…This House, keeping dignity in mind, demonstrating dignified conduct, unanimously created a legal system in 2015, and that constitutional structure that emanated unanimously with one abstention from the Parliament endorsed by state legislatures should be rule of law because it was sanctified by the President by appending her signatures under Article 111. Now is the befitting occasion for all of us to reiterate that because that was a visionary step endorsed by Parliament. And imagine if that had taken place, things would have been different…”
Without naming NJAC, he referred to it as “a historic development with rare convergence of unity since independence found acceptance by needed State Legislatures.”
On Tuesday, Dhankhar said the House needs to reflect what happened to the NJAC. “Under the Constitution, there is no provision that allows anyone to tinker with that. There is no constitutional provision of review or appeal of a constitutional amendment. If there is legislation in the country by parliament or state, judicial review can take place…., whether there is conformity with constitutional provisions,” he said.
“If we effect an amendment in the Constitution, and that is not executable. If a constitutional amendment is not executable, I have no doubt the Parliament is possessed of the power. Any power… in any institution to ensure what emanated from the Indian Parliament, sanctified by a requisite number of state legislatures, holds the field,” Dhankhar added.
The meeting comes close on the heels of Dhankhar’s interaction with leader of the house, JP Nadda and Leader of the Opposition, Mallikarjun Kharge on the issue. The government will also hold meetings with floor leaders of all political parties separately to elicit their suggestions on NJAC.