‘Usurpation of legislative power’

Signifying that the Congress party is vertically divided on the Supreme Court verdict striking down the National Judicial Appointments Commission (NJAC) Act, Abhishek Manu Singhvi, the Congress party’s national spokesperson and an eminent lawyer, holds views diagonally opposite to that of his party. According to him, the Supreme Court verdict is a classic example of a “legally and constitutionally erroneous” verdict that is also “naked usurpation of legislative power”. Singhvi made it emphatically clear that the Supreme Court should have given a fair chance to the NJAC. Excerpts from an interview he gave Frontline :

The Congress party had initially supported the NJAC Bill, but after the Supreme Court verdict there has been a change in its stance and the party has decided against supporting any fresh bid by the government to revive the NJAC. Your comments.

Let me make it very clear at the outset that I am speaking to you on this issue in my personal, legal and non-political capacity. These are my personal views and should not be taken as the party view. Now, coming to the Supreme Court striking down the NJAC, I am of the opinion that this is a classic example of a majority verdict which is not only legally and constitutionally erroneous but also naked usurpation of legislative power. I have written this in my blog, and it has been widely used by many publications. The NJAC was created by near total unanimity in Parliament, and 20 State legislatures endorsed it. This in itself was a rarity in our fractured polity. The collegium system, over the years, has proved to be incestuous, opaque and cloistered in style, leading to inbreeding among the judicial/legal fraternity. There was a growing realisation that the system of appointing judges needed to be infused with fresh air, that it needed broad-basing and what better system could there have been for broad-basing than to have such eminent persons as the Prime Minister, the Chief Justice of India and the Leader of the Opposition, who not only represent the three organs of the state but are also the ones to whom we entrust the nation itself.

Since you seem so convinced of the superiority of the NJAC over the collegium system, what, in your opinion, made the apex court strike it down?

Nobody is saying that the NJAC was perfect. But let us not allow the perfect to become the enemy of the good. The NJAC, as it was envisaged, could have been tweaked to further improve it. But totally junking it was not fair. The Act could have been improved, as I have said in my blog. After years of trying other models of appointing judges, this too should have been given a fair chance. As for reasons for striking it down, maybe it was the changed context, as explained by Randeep Surjewala. [the Congress spokesman].

What could have been done to further improve the Act?

The total number of people in the commission as suggested in the Act, six, was an oddity in my opinion. It could have been either five or seven. Then, the rules could have been more comprehensive, filling in the gaps in procedures, ensuring transparency and safeguarding confidentiality to prevent defamation of prospective candidates. Granted, the possibility of abrogation would have been there, but why not give it a chance?

As you say, there was near total political unanimity in creating the NJAC initially. What has made the Congress party change its stance now? What has changed since then?

As far as the Congress party is concerned, I will repeat what I have already said in a statement. The context has changed, one has to forget the past and look ahead. The way forward is to realise that there is a great trust deficit as far as government is concerned. The grave and great trust deficit does not arise from an individual act, but there is a perceived assault on institutions, procedures and persons, which has led to a feeling that this government wants to impose its will through institutions, including the judiciary. I fully endorse the statement issued by Randeep Surjewala that the NJAC judgment implicitly reflects lack of confidence in the government which has eroded institutional autonomy and constitutional safeguards over the past 17 months. I look forward to the formulation of a system of appointing judges that will have transparency, accountability and responsibility.