In a setback to the NDA government, the Supreme Court on Friday struck down as unconstitutional the National Judicial Appointments Commission (NJAC) Act, 2014, and restored the over-two-decade-old collegium system for appointment of judges to the higher judiciary. An agitated government said the verdict “ignored the unanimous will of Parliament” and called it a “flawed” one, setting the stage for an unusual fight for balance of power between the legislature and the judiciary.
In essence, the NJAC was to give some role to the political executive in the appointment and transfer of the members of the higher judiciary, both preserves of the judiciary in the collegium system seen as a non-transparent.
Holding the NJAC Act and the Constitution (99th Amendment) Act, 2014, as “unconstitutional and void”, a five-judge bench headed by justice JS Khehar refused to accept the government’s view that the collegium system is opaque.
Khehar 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 indubitably components of the “basic structure” of the Constitution.
His views were shared by justices MB Lokur, Kurian Joseph and Adarsh Kumar Goel, who gave their separate reasoning for reviving and fine-tuning the collegium system.
However, justice J Chelameswar, who disagreed with them and upheld the validity of the 99th amendment, said that “the assumption that primacy of the judiciary in the appointment of judges is a basic feature of the 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”. 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”.
However, the apex court has sought suggestions from the Centre and others to improve the working of the collegium system and has posted all the petitions for hearing on November 3. It also rejected the central government’s plea to refer for reconsideration of the second and third judges cases of 1993 and 1998, respectively, to a larger bench
Expressing surprise at the verdict, law minister DV Sadananda Gowda said: “The will of the people had been brought to the court. We will consult senior colleagues and the Prime Minister and take a decision… NJAC was completely supported both by the Rajya Sabha and the Lok Sabha; it had 100% support of the people.”
Attorney general Mukul Rohatgi also said, “It is inappropriate to revive the collegium system. This judgment is not a case for review. Parliament may take a call, I cannot speak for them.” He added that Parliament had unanimously voted in favour of the NJAC law and the Constitutional amendment and the latter was then ratified by 20 state assemblies and had received presidential assent.
Telecom minister Ravi Shankar Prasad said the verdict was a setback for parliamentary sovereignty, adding that NJAC was part of judicial reforms exercised after deep consideration. “We will go through the judgment and come out with a structured response,” he added.
Many legal luminaries disagreed with the judgment. Senior advocate Harish Salve said: “I am deeply disappointed with the judgment. I have always been of the opinion that judges shouldn’t appoint judges. This happens nowhere in the world. The SC is giving a message that the power is with them.”
Senior counsel KTS Tulsi said: “I am disappointed. As someone in Parliament said, this is the tyranny of the unelected over the elected. Appointment can’t be the exclusive reserve of the judges. I hope that the government will deliberate and Parliament will consider the issue. There may be more opportunities to revisit the subject. ”
Senior advocate Gopal Subramanium said that it is a good sign that the SC has called for further discussions on the collegium system. “It shows that it has accepted that there are defects in the system. That there is opacity. Second, it has stopped the interference of the executive. It has stood by the basic principle.”
Activist lawyer Prashant Bhushan welcomed the SC judgment, saying it was necessary “especially at a time when the government is seeking to control various independent accountability institutions”. He added: “Among the many reforms needed in the judiciary are full-time and independent institutions for selecting judges as well as receiving complaints and taking action against judges. I hope that today’s decision by the Supreme Court would act as a catalyst to bring about these important reforms.”
A batch of petitions had challenged the validity of the Constitution (99th Amendment) Act, 2014, and the NJAC Act, 2014, on the ground that by virtue of the amendment and enactment of the Act the basic structure of the Constitution has been altered.
The legislations had been brought into force with effect from April 13, 2015.
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 the 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.