Seeking to allay apprehensions that the proposed Judges Appointment Commission was contrary to the basic structure of the constitution, the law ministry maintained that it would restore the consultative process that was given a goodbye under the collegium system of appointment.
“How is the JAC mechanism for appointment contrary to the basic structure of the constitution. All over the world, the power to appoint judges is vested in the government,” said a highly- placed ministry source.
In fact, the collegium system of appointment of judges to the higher judiciary was contrary to the basic structure of the constitution as it took away the consultative process enshrined in the constitution for the appointment of judges, the source contended.
It said that collegium system had reduced the law minister to be just a postman between the Chief Justice of India and the Intelligence Bureau that verifies the background of the judges sought to be elevated or appointed to the higher judiciary.
The constitutional amendment bill for the commission has been passed by the Rajya Sabha during the recently-concluded monsoon session of parliament but could not be introduced in the Lok Sabha on the last day of the session due to a mistake in its numbering.
The source also said that the ministry firmly of the believes that senior bureaucrats could not be left unprotected and for any investigation against them, the prior approval of the government was a must.
The ministry’s stand is in obvious reference to Supreme Court hearing whether in court monitored cases the prior sanction of the government was required to proceed against the senior bureaucrats was required or not.
“I think the senior officers are not be left without protection,” said the source. The law ministry is also opposed to granting rank of secretary to the central government to the the Central Bureau of Investigation (CBI) director as the investigating agency has pleaded before the apex court.
“If we concede this, then RAW (Research and Analysis Wing) head and the heads of the paramilitary forces too would be demanding the same status,” the source said. The law ministry, the source said, was open to exercise all available options to nullify the apex court judgment holding a section of the electoral law as void and directing the unseating of an elected member upon his conviction.
The judgment, the source said, was contradictory. “On one hand, it says that upon conviction, a member gets automatically disqualified and on the other hand it says he can continue in the legislature if sentence and conviction was stayed.”
“If once a member gets unseated, then how his position could be restored even if conviction and sentencing was stayed,” the source wondered.