The National Judicial Appointments Commission (NJAC) is unconstitutional, ruled the Supreme Court in a much-awaited and landmark judgment on Friday. The verdict effectively rejects a major law passed by Parliament last year, which was subsequently ratified by 20 state Assemblies, and restores the collegium system of appointing judges.
The Supreme Court pronounced its verdict on a batch of petitions challenging the constitutional validity of the NJAC that sought to replace the 22-year-old collegium system for appointment of judges to the higher judiciary. The verdict on the 99th amednment to the Constitution and the NJAC Act, 2014 was pronounced by a bench comprising Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel.
This was the third judgment of the Supreme Court on the mode of appointment of judges – the first being 1993 by which the collegium system of appointment of judges was introduced, the other being in 1998 which reaffirmed the collegium system with some modifications. The verdict on the challenge to the validity of both acts was reserved on July 15 after the five-judge bench heard arguments over 28 hearings over three months.
The issue before the court as agitated by the petitioners was that the NJAC is an infringement of the independence of judiciary as it dilutes the primacy of the Chief Justice of India in judicial appointments, as any two members of the commission could block any appointment by vetoing it.
This was contrary to 1993 and 1998 nine-judges verdict which had said that the CJI will have the primacy in the judicial appointment. The petitioners opposing the NJAC voiced strong reservation on the presence of Union law minister as one of the six members of the commission.
The petitioners and others had contended that the constitutional amendment paving way for the NJAC Act, 2014, got affected only on December 31, 2014 after President Pranab Mukherjee gave his assent to it following more than two-third of the state assemblies ratifying it.
The petitioners had also opposed the provision for two eminent people on the NJAC and veto power allowing any two NJAC members to block an appointment they opposed, but the government defended it, saying that it gave diversity and a say to people with non-judicial background in judges’ appointment.
Further, it envisaged that of the two eminent persons, one would be from the Scheduled Castes or Scheduled Tribes or the OBCs, minority communities or a woman.
What’s NJAC and what really happened?
The judges to the higher courts (High Courts and Supreme Court) are appointed by a collegium of judges. In this collegium system, elected public representatives or governments have no role to play. The NJAC or National Judicial Appointments Commission sought to change the system, where judges would have been appointed by a commission where the legislative and the executive would have had a role.
The NJAC was supposed to comprise of the Chief Justice of India (Chairperson, ex officio), two other senior judges ofthe Supreme Court, The Union Minister of Law and Justice, ex-officio and two eminent persons, to be appointed by the Chief Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha. One of the them was envisaged to be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. These two eminent person positions had a three-year fixed term.
How it came up?
The National Judicial Appointments Commission (NJAC) was proposed as a committee that would appoint to the higher judiciary in India. The commission was proposed by the UPA-led government and was carried over by the Narendra Modi-led NDA government, which brought the Constitution (99th Amendment) Bill, 2014. The bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014, and became an Act. The NJAC replaced the collegium system for the appointment of judges. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and the President gave his assent on 31 December 2014. The NJAC Act became effective from April 13, 2015.
And how it came down?
But Chief Justice of India HL Dattu refused to take part in the NJAC. The NJAC enjoyed support from the Supreme Court Bar Association and many legal luminaries but was also challenged by some lawyer associations and groups before the Supreme Court of India through Writ Petitions. A three-judge bench of the Supreme Court referred the matter to a Constitution Bench
that heard different arguments for over a month. Finally, on October 16, a five-judge bench of the Supreme Court declared the 99th Constitutional Amendment Act and the NJAC Act 2014 “unconstitutional and void”.