NEW DELHI, Oct 16: The NDA Government suffered a huge setback today with the Supreme Court striking down as unconstitutional the NJAC Act which gives a major role to the executive in appointing judges to higher judiciary.
The ambitious National Judicial Appointments Commission (NJAC) Act, 2014 to replace the 22-year-old collegium system of judges appointing judges was struck down by a five-judge Constitution Bench, setting the stage for a potential confrontation between the judiciary and the Government.
Law Minister D V Sadananda Gowda expressed “surprise” over the verdict, which gave a new lease of life to the replaced collegium system by “declaring it as operative”.
He said the next course of action will be decided after consultations with Prime Minister Narendra Modi and Cabinet colleagues.
Attorney General Mukul Rohatgi also said the collegium system, which became re-operational with today’s verdict, is not found in the Constitution and is not appropriate as it is an “opaque” system.
The operative portion of the 1,030-page verdict was pronounced in the packed courtroom with Justices J S Khehar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel holding as unconstitutional and void both the Constitution (Ninety-ninth Amendment) Act, 2014 and the NJAC Act.
However, Justice J Chelameswar upheld the validity of the Constitution (Ninety-ninth Amendment) Act and gave his reasons for it but said “in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the ACT (NJAC).
The final court order signed by the five judges said: “The prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases of 1993 and 1998 respectively is rejected.
“The Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void.
“The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void.
“The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the “collegium system”), is declared to be operative,” the bench said.
It further said, “to consider introduction of appropriate measures, if any, for an improved working of the ‘collegium system’, the matter is listed on November 3.
The NJAC was perceived by some in the legal fraternity as an attempt to interfere with the independence of judiciary.
Justice Khehar, who headed the bench, said that the participation of the Union Law and Justice Minister as NJAC Member as contemplated under Article 124A(1) in the matter of appointment of Judges to the higher judiciary, would breach the concepts of “separation of powers” and the “independence of the judiciary”, which are both undisputedly components of the “basic structure” of the Constitution.
His views were shared by Justices Lokur, Joseph and Goel, who gave their separate reasonings for reviving and fine tuning the collegium system of appointment of judges.
However, Justice Chelameswar, who disagreed with them and upheld the validity of the 99th amendment, said “the assumption that primacy of the judiciary in the appointment of judges is a basic feature of Constitution is empirically flawed”.
He said proceedings of the collegium were absolutely “opaque and inaccessible” to the people at large and “Transparency is a vital factor in constitutional governance.”
However, Justice Joseph, who reached the conclusion that the 99th amendment was bad in law, chose not to examine the validity of the NJAC saying that since the majority view has held it as unconstitutional “there is no point in dealing with the validity of the creature of the amendment.”
“It does not exist under law. Why then write the horoscope of a still born child (NJAC),” he said.
Justice Lokur gave solid reasons to quash the new law and favouring revival of collegium system with fine tuning.
He also said Article 124A impinges on the independence of the judiciary and since the 99th Constitution Amendment Act is unconstitutional, the NJAC Act which is its child “cannot independently survive on the statute books.”
Justice Goel concluded that the new scheme damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary.
“Under the new scheme such primacy has been given a go-bye. Thus the impugned amendment cannot be sustained,” he said adding that “the amendment being beyond the competence of the Parliament, I do not consider it necessary to discuss the validity of the NJAC Act in great detail as the said Act cannot survive once the amendment is struck down.”
On the inclusion of two eminent persons in six-member NJAC, the majority view held it ultra vires of the Constitution with Justice Khehar maintaining that for variety of reasons the same has been held as violative of the “basic structure” of the constitution.
Justice Lokur said, “These two eminent persons can actually stymie a recommendation of the NJAC for the appointment of a judge by exercising a veto conferred on each member of the NJAC by the second proviso to sub-section (2) of Section 5 of the NJAC Act, and without assigning any reason.”
“In other words, the two eminent persons (or any two members of the NJAC) can stall the appointment of judges without reason. That this may not necessarily happen with any great frequency is not relevant – that such a situation can occur is disturbing. As a result of this provision, the responsibility of making an appointment of a judge effectively passes over, in part, from the President and the Chief Justice of India to the members of the NJAC, with a veto being conferred on any two unspecified members, without any specific justification,” he said.
“The sum and substance of this discussion is that in principle, there can be no objection to consultation with eminent persons from all walks of life in the matter of appointment of judges, but that these eminent persons can veto a decision that is taken unanimously or otherwise by the Chief Justice of India (in consultation with other judges and possibly other eminent persons) is unthinkable.
“It confers virtually a monarchical power on the eminent persons in the NJAC, a power without any accountability; the categories of eminent persons ought not to be limited to scheduled castes, scheduled tribes, other backward classes, minorities or women but that is a matter of policy and nothing more can be said about this, except that a rethink is necessary; there can be no guidelines for deciding who is or is not an eminent person for the purposes of nomination to the NJAC, but that the choice is left to a high powered committee is a sufficient check, provided the decision of the committee is unanimouS,” Justice Lokur said.
His view was echoed by Justice Goel, who said “appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts, can certainly be influenced to a great extent by the Law Minister and two nominated members, thereby affecting the independence of judiciary.”
The batch of petitions challenged the validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 and the NJAC Act, 2014 on the ground that by virtue of the amendment and enactment of the Act, basic structure of the Constitution has been altered.
The legislations had been brought into force with effect from April 13, 2015 and various issues which came under judicial scrutiny included the inclusion of two eminent persons to the NJAC which also had Chief Justice of India, two senior most judges of the apex court and the Union Law Minister as the members.
Under the law, two eminent persons will be nominated by a committee consisting of the Chief Justice of India, Prime Minister and Leader of Opposition in the Lok Sabha or where there is no such LoP, the leader of single largest Opposition Party in the House.
Further, it envisages that of the two eminent persons, one would be from the Scheduled Castes or Scheduled Tribes or OBCs, minority communities or a woman. (PTI)
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