Dhankhar pushes for NJAC revival, Opposition wary of true intent

Back in August 2014, when Prime Minister Narendra Modi’s government had moved the NJAC Bill for Parliament’s approval, it had passed with near unanimous support from the Opposition only to be struck down 14 months later by the Supreme Court. That was a decade ago. The Opposition, enriched now with the benefit of hindsight over attempts by the Modi regime to either undermine or compromise sundry institutions, wonders if it can extend the same unqualified support to a legislation that would “officially sanction the Executive’s intervention in appointment of judges”.

Dhankhar’s push a bait?

Floor leaders of Opposition parties, who met Dhankhar on March 25 along with their counterparts from the Treasury side, only offered vague inputs on whether or not the Centre should attempt to revive the NJAC Act. Sources told The Federal that Congress president and Leader of Opposition in the Rajya Sabha, Mallikarjun Kharge, and other floor leaders from the INDIA bloc told Dhankhar that they need time to “discuss the issue within our parties and with allies” before giving any assurance on whether or not they will support the Centre if the NJAC is revived.

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Many in the Opposition are convinced that Dhankhar’s “obsessive” push for reviving the NJAC by using the “genuinely disturbing” facets of the Varma case as bait is merely to gauge whether a bid by the Centre to restore the scrapped legislation will draw bipartisan support. That the Supreme Court had struck down the NJAC, a constitutional amendment passed by Parliament with “rare convergence of unanimity” between the Treasury and Opposition Benches, has been one of Dhankhar’s pet peeve since the time he became Vice President. His maiden speech as Rajya Sabha Chairman in August 2022 was also heavy with anguish over the apex court scrapping the NJAC.

Opposition fears

Though Opposition parties agree that the current system of judicial appointments through a Collegium of Supreme Court’s senior-most judges, needs “massive reform”, they also fear that falling for Dhankhar’s bait could “end up surrendering whatever autonomy and credibility the judiciary is left with to the BJP”, sources said.

The NJAC Act of 2014 had replaced the Collegium system with a six-member commission for appointment of judges and judicial officers. Opposition MPs, who voted in favour of the legislation at the time say their views on the need for a “better and more transparent system for appointing judges than the Collegium” remain the same but their cooperation with the government in supporting another NJAC-like law, even with the same provisions as the 2014 Act, “will come with several conditions and cannot be based on the premise that since we had supported the Act then, we must do so now too”.

Opposition demands draft of new NJAC Bill

A Congress MP told The Federal that Kharge and the party’s chief whip in Rajya Sabha, Jairam Ramesh, have “informed Dhankhar and JP Nadda (Leader of the House in Rajya Sabha) that no assurance of support will be given from our side till the government shares its proposal on what a new NJAC law may look like”.

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A senior MP from a non-Congress INDIA bloc constituent said the Opposition’s support to the NJAC in 2014 was “given in good faith and on the understanding that the government will not exert any undue influence on the appointment process or undermine the judiciary in any way but recent years have given us the bitter experience of the government doing just that even without though the NJAC itself was struck down in 2015... if the NJAC is indeed revived, the government will be even more brazen with such practices because then it will have a direct say in the appointment of judges”.

What NJAC may look like

This fear within the Opposition of a resurrected NJAC becoming a legitimate tool for government interference in the judiciary stems as much from the composition of the six-member panel for judges’ appointment that the 2014 Act had laid down as from the Modi regime’s regular undermining of institutions and constitutional bodies.

Congress MP and one of India’s most accomplished lawyers, Abhishek Manu Singhvi, has already advised caution against “any knee-jerk reaction” to the Varma case that seeks to “replace the Collegium with the NJAC”. Singhvi told The Federal that “increased government interference in the judiciary will get legal sanction” if the NJAC is revived as the Centre will not only have its law minister as ex-officio member but may also prevail in getting people “who share its political and ideological worldview” nominated to the six-member panel for judges’ appointments under the ‘eminent persons’ category.

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‘NJAC not the solution’

As per the 2014 Act, the panel included the Chief Justice of India (e-officio chairperson), two judges of the Supreme Court who are “next to the CJI” in hierarchy, the law minister and two eminent persons (at least one of whom is from the SC, ST, OBC or minority community or a woman) nominated by a panel comprising the prime minister, the CJI and the Lok Sabha’s LoP.

Though admitting that the Collegium system has “largely failed in recent years” Singhvi says the arguments being proffered to “replace the Collegium with the NJAC as if the latter will be some sort of panacea for all real or perceived faults with the judicial appointments process are highly misplaced”. Interestingly, Dhankhar, while imploring Rajya Sabha MPs to reflect on the need to revive the NJAC had hinted that the Varma case may not have happened had the 2014 Act not been struck down.

Varma case a wake-up call

“Where is the guarantee that the NJAC will choose judges more wisely than the present system; where is the justification in replacing the current system with an untested system that, in fact, authorises government interference in selection of judges and thereby violates the doctrine of separation of powers,” Singhvi said, while adding that the Varma case should be a wake-up call for the current Collegium to “urgently reflect on the need to apply whatever correctives are needed to preserve the sanctity and independence of the judiciary.”

The Congress leadership, it is learnt, has told Dhankhar that while consultations on reviving the NJAC can take place “in due course”, he must first concede the request several Opposition MPs, including Ramesh, have repeatedly made for a discussion in Rajya Sabha on the state of the judiciary.

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Opposition demands debate on Varma case

“There is no doubt that the Varma matter is very serious but what we have been asking for is a wide-ranging discussion which the Chairman has not been allowing,” a Congress Rajya Sabha MP said.

“In the Varma case, the Supreme Court-appointed inquiry panel is already investigating and it is better we wait till the panel completes its probe so we can have a more informed discussion on that case but why can we not have a discussion on the judiciary? Even the Opposition’s impeachment motion against that Allahabad High Court judge (Justice Shekhar Yadav) who made extremely communal remarks against Muslims has not been decided by the Chairman,” a Congress Rajya Sabha MP said.

Some INDIA bloc constituents also share the view that if the Centre, despite the misgivings of the Opposition, does indeed revive the NJAC Act in some form, then the Opposition must lead a “coordinated and aggressive counter-campaign” for introduction of reservations for Scheduled Castes, Scheduled Tribes, Backward Castes and Women in judicial appointments.

Demand for quota in NJAC 2.0

“If NJAC 2014 could propose reservation within the selection panel meant for choosing judges then the actual judicial appointments should also have reservation,” an RJD MP told The Federal, asserting further that “a large number of cases, particularly criminal cases before courts today are about atrocities on SC, ST, OBC and minority communities or on women while representation of these sections of the population in the judiciary is negligible”.

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Sources said this pitch to make support for a NJAC 2.0 conditional on the introduction of reservations in the judiciary – a demand, sources say, has been backed by INDIA bloc outfits such as the Congress, the RJD, the SP, the JMM and the DMK – is also meant to serve another political purpose.

Caste census conundrum

“If and when the Centre tries to push ahead with NJAC, introduction of reservation (in judiciary) should be our counter because this will once again bring focus back on the need for a Caste Census, which is something we know the BJP is so dead against that it may just decide to drop the NJAC idea itself just as it is not getting the decadal Census done because it knows that whenever that exercise starts, it will have to take a position on Caste Census too,” an INDIA bloc MP said, adding that the reservation pitch may “end up killing two birds with one stone – stop the NJAC and expose the BJP’s double-speak on social justice”.