Abhishek Singhvi, senior advocate in the Supreme Court, and the Congress-I spokesperson, writes a column in Hindustan times, called candid corner. Today's piece, Judges in law, deals with the National Judicial Council Bill, presently being considered by the Parliamentary Standing Committee. In his piece, he justifies the Bill, as it does not require a Constitutional amendment, even though he admits it falls short of expectations in the civil society for a more broad-based body in charge of appointments, transfers, discipline and removal of Judges of Higher Judiciary. A Constitutional amendment, according to him, has certain difficulties. These include a fractured polity, and fragmented consensus, which he says, would make a constitutional amendment an exercise in eternity.
Singhvi's thesis that a broadbased commission with political and other elements external to judicial family as its members would be in conflict with judicial independence is debatable. There are several examples across the world (in vibrant democracies, not banana republics) where such broadbased commissions exist, but is not at odds with independence of judiciary.
But the more important issue is this: If he agrees that the status quo is unsatisfactory, and the brahmastra of impeachment has to be made usable rather than rendered dormant as it has been all these years, then a Constitutional amendment is inevitable. And why he is shying away from a Constitutional amendment? A fractured polity and a fragmented consensus are not the issues which are likely to come in the way of a Constitutional amendment on this issue. Today, there exists a wide political consensus across the spectrum. Look at NJC proposal. This was promised by all the parties in their election manifestos - including the BJP and the Left Parties, and the Congress. There may be differences in degrees about its composition, but the parties are not divided on the question of reforming the existing method of appointing and transferring Judges, legitimised in favour of Judiciary with primacy to the Chief Justice of India. No doubt, the present system of impeaching Judges failed in the case of Justice Ramaswami in 1993 because of lack of political will, as the Congress chose to abstain during the crucial vote in Parliament. That in fact reveals the flaw of the existing system of impeachment. The answer, therefore, lies in reforming the system, rather than blame the players. A Constitutional amendment, therefore, would not fail because of fractured polity and a fragmented consensus. Today, the entire political class wants to limit the scope of judicial activism, and frequent judicial aberrations. Where is the question of parties opposing such a key reform aiming to put judiciary in its place?