Do NJAC provisions violate statute? Supreme Court poser to Centre

Do NJAC provisions violate statute? Supreme Court poser to Centre

FPJ BureauUpdated: Saturday, June 01, 2019, 12:20 AM IST
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A senior lawyer has said the new law "destroys" the independence of the judiciary as it defies the principle of separation of powers by bringing it under parliamentary control |

Provisions in new law pertain to appointment of the chief justice of HC

New Delhi : The Supreme Court on Thursday sought to know the Centre’s stand on certain provisions of the National Judicial Appointments Commission (NJAC) Act on the selection of high court judges which opponents of the new system allege violate the federal structure.

The provisions in the new law pertain to the appointment of the chief justice of High Court and also the NJAC, while shortlisting a candidate as a judge of the High Court can seek his opinion.

“Will this not destroy the federal structure?” a five- judge Constitution Bench headed by Justice J S Khehar wanted to know and asked Solicitor General Ranjit Kumar for an answer.

The apex court asked the Solicitor General to address the issues after senior counsel Arvind Dattar, appearing for a lawyers’ body from Chennai, criticised Section 6(1) and Section 6(3) of the NJAC Act coupled with their requirement of “ability, merit and any other criteria of suitability”.

He said the new law on the appointment of judges “destroys” the independence of the judiciary as it defies the principle of separation of powers by bringing it under parliamentary control.

“The creation of the National Judicial Appointments Commission, in the present form, would destroy the independence of the judiciary and also the principle of separation of powers.

“From the constitutional control, the 99th amendment makes the judiciary under Parliamentary control,” the counsel for the Service Bar Association of Madras High Court said.

The bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and A K Goel, said that the power to frame rules and regulation is delegated in the NJAC by the NJAC Act, 2014, passed by parliament.

Datar opposed the NJAC saying that the new law was violative of the basic structure of the Constitution.

On the issue of the appointment of eminent persons, Datar said that there is no criteria to decide as to who would be “eminent persons” except that they will be nominated by the three-member committee comprising the CJI, the Prime Minister and the leader of opposition.

“It is unprecedented to have two eminent persons in a Committee to appoint persons to specialist posts such as the higher judiciary without any qualification prescribed for them at all.

 “Therefore, one will have to go by the common parlance, meaning who is ‘famous or respected’,” he said adding that it is not clear whether such a nomination will be by majority.

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