SC rejects NJAC, restores collegium system, seeks amendments to it.
New Delhi : In a judgment that was expected in the legal community but came as a surprise to the central government, the Supreme Court has rejected the National Judicial Appointments Commission (NJAC) and 99th constitutional amendment for the appointment of judges to the Supreme Court and high courts and restored the old collegium system in its place.
A five-judge Constitution bench comprising justices J S Khehar, J Chelameswar M B Lokur, Kurian Joseph and A K Goel struck down as unconstitutional the NJAC Act and also rejected central government’s plea to refer for review the matter to a larger bench.
While four judges held as unconstitutional the 99th amendment of the Constitution, Justice J Chelameswar differed with them and gave his own reasons for upholding its validity. But in an admission of the need to tweak the existing system, the bench also said it was willing to take suggestions for improving the collegium system of appointment of judges and posted the hearing for November 3.
This marks a blow to the Modi government’s attempt to change the system of appointment of judges to the higher judiciary. Union Law Minister Sadanand Gowda expressed surprise over the apex court’s order, and saw it as a rejection of the people’s will as expressed through the unanimous support of both Houses of Parliament to the law. Gowda said: “We are surprised by the verdict of the Supreme Court,” and added that the next course of action will be decided after consultations with Prime Minister Narendra Modi and Cabinet colleagues. ‘‘The verdict is a setback for Parliament,” said union minister Ravi Shankar Prasad, even as he denied that embedded in the landmark ruling were the seeds of confrontation between the judiciary and Parliament.
However, the court made it clear that everyone is committed to upholding the constitution and the debate can never be reduced to a contest between acceptance of an unconstitutional but popular law, one the one hand, and a constitutional but unpopular law, on the other hand. It observed that if this were to be accepted then there would never be any constitutional review of any law passed by Parliament that always has a popular mandate.
The challenge to the 99th constitutional amendment and the NJAC Act had come from lawyers of the Supreme Court among other petitioners and in quashing both the enactments the court has been guided by the principle of basic structure of the constitution. ‘‘The theory of basic structure is based on the principle that a change in a thing does not involve its destruction, and destruction of a thing is a matter of substance and not form,” the Bench said.
The independence of the judiciary is the basic structure of the constitution, and the apex court came to the conclusion that both the 99th amendment and the NJAC were in violation of the basic structure.
Commenting on the role of the chief justice of India, in the proposed NJAC, it pointed that though the CJI is the chairman of the NJAC he has been reduced to a mere voting statistic and the role of judiciary in the appointments has become ‘farcical’ denying the constitutional, historical and legitimate significance to both of them.
The crucial issue is the provision in the NJAC that any candidate for any post of a judge who does not meet with the approval of two of the six members cannot be appointed. This is seen as a virtual veto power with the executive considering that these two members could be the union law minister, and one of the nominated non-judicial members.
These issues were raised notably by two senior Congress members — M Veerappa Moily (former law minister) and Abhishek Manu Singhvi when Parliament debated these bills, but were brushed aside by the government. Thus even though there was a general political consensus that the collegium system of judges appointing judges should go, Parliament could not produce a bill that could be insulated from a legal challenge.
The National Judicial Appointments Commission was passed in Parliament and notified by the government even as the Constitution bench was hearing petitions challenging it. Days after the appointments panel was put in place, Chief Justice of India HL Dattu wrote to Prime Minister Narendra Modi that he would not be a part of it until the Supreme Court decides on its validity.
judiciary, not executive .
WILL HAVE LAST WORD
WHAT WAS NJAC?
The National Judicial Appointments Commission was to have six members — the Chief Justice of India, the two most senior judges of the Supreme Court, two eminent persons, and the Law Minister. The two eminent Indians were to be chosen by the Chief Justice, the PM and the leader of the largest opposition party in the Lok Sabha.
