Government working on new detailed strategy to counter NJAC setback

NEW DELHI: Rattled by the Supreme Court quashing the constitutional amendment and legislation establishing the National Judicial Appointments Commission (NJAC), a combative government is working on a "detailed strategy" to counter what it called a "setback to parliamentary sovereignty."

While attorney-general Mukul Rohatgi has been asked to draw up suggestions on what do next after studying the 1,042-page order, the first challenge being explored is this: How did the Supreme Court simultaneously revive the collegium system of judges choosing members of the higher judiciary? The NJAC was meant to replace the collegium system.

Communications minister Ravishankar Prasad said in this regard that lawmaking didn't come under the judiciary's remit, this being the privilege of Parliament, thus suggesting that the top court may have overstepped. The legislation that has been struck down had been approved last year when Prasad was law minister. "Lawmaking is a part of the Parliament—this I know for sure," Prasad told ET. "Judges don't make law. This legal position is also well settled."

The government will explore conversations with other political parties given that the NJAC was enabled by a constitutional amendment, passed by a two thirds majority in both houses of Parliament and by 20 state legislatures.

"Judiciary has got the power of judicial review and we are looking into the judgment. But yes, I must tell you, parliamentary sovereignty has received a setback today," said Prasad.

He said that when "the Supreme Court itself is seeking suggestions from November 3 on the need to improve the collegium system, (it) is a confirmation that the system was not working well."

The Congress party, however, made it clear it won't join any attempt to "view the quashing of the NJAC as a confrontation between judiciary and Parliament." Over the next few days, the government will have to shape a response on two front—the legal and the political.

To quite an extent, much will also depend on the outcome of the Bihar elections and the impact it may have on the future approach of political parties.

"Those are questions of detailed strategy which will be worked out after examining the judgment and legal consultations. Therefore, I cannot make any comment right now," Prasad said. He, however, indicated that consultations with other political parties can be explored only after "examining the judgment and proper legal consultations" by the government.

The government's initial response through law minister Sadananda Gowda was muted.

But it changed tack after consultations between finance minister Arun Jaitley and Prasad, following which the party sought to counter the ruling by dubbing it an affront to the wisdom of the entire political class.

Prasad didn't reject suggestions that his remarks may appear confrontational, given that he was a Cabinet minister.

"I am also a member of Parliament. And that collective will of Parliament was there (behind those laws). I mean every word of it… I am only making a comment with full sense of responsibility because I feel that this initiative by the government was not a government-led initiative, it was the initiative of entire Parliament, entire political class," Prasad asserted.