Home/ Politics / Policy/  The arguments that led to Supreme Court’s NJAC verdict

After a year of wrangling in the courtroom between the judiciary and the executive, a five-judge bench of the Supreme Court on Friday struck down the constitutional amendment that introduced a six-member panel for selecting judges to the higher judiciary, declaring it unconstitutional.

It also struck down the law which laid down the modalities for the National Judicial Appointments Commission (NJAC).

The judgement has been widely awaited by members of the judiciary, executive and public alike. It is seen as a milestone in the history of judicial pronouncements.

The case has brought together respected names of the legal fraternity such as Ram Jethmalani, Harish Salve, Fali Nariman, T.R. Andhyarujina, Anil B. Divan, K.K. Venugopal and Arvind P. Datar under the same roof, arguing against the validity of the newly formed constitutional body.

For over two decades, judges to the higher judiciary in India have been appointed from within the system, that is, by a group of other judges. The collegium system had been sought to be replaced with a new system whereby a six-member commission consisting of members of the judiciary, executive and civil society would appoint judges of the higher judiciary.

Its six members will include the Chief Justice of India (CJI), two most senior judges of the Supreme Court, the law minister, and two eminent persons. The two eminent persons would be nominated by a panel comprising the Prime Minister, CJI and leader of the opposition in the Lok Sabha.

The government on 13 April notified the National Judicial Appointments Commission (NJAC) Act, 2014, and a related constitutional amendment.

The best legal minds in the country have articulated their views on NJAC.

The matter was first heard by a three-judge bench and later referred to a five-judge bench headed by justice Anil Dave.

The arguments began with Justice Dave recusing himself on 15 April from presiding over the bench that was to decide the matter due to an objection raised by senior counsel Fali Nariman that it would cause a conflict of interest for him to be part of the same commission whose constitutional validity he was to decide on.

Thereafter, the matter was heard by a five-judge bench comprising justice Jagdish Singh Khehar, justice Kurian Joseph, justice Lokur Madan, justice Adarsh Kumar Goel andjustice J. Chelameswar.

Course of arguments

At the onset, questions of the immediate effect of implementation of the Act were discussed. It was observed that the Act would not have an effect on fresh appointments and would only be helpful in cases of pending appointments.

The arguments were thereafter channelled towards judging the constitutional validity of the Act. These included:

1.Whether NJAC would endanger the independence of the judiciary as guaranteed under the existing collegium system.

Arguments against NJAC were based on the three landmark judgements that safeguarded the collegium system, namely, the first, second and third judges’ cases.

The first judges case decided in 1981 gave power to the President to refuse the judges’ names recommended by CJI. Twelve years later, this position was reversed by a decision of Justice J.S. Verma under the second judges case which extended primacy to the judiciary. In 1998, this principle was cemented by the Supreme Court, laying down guidelines for effective working of the collegium system.

Renowned names from the legal fraternity such as Nariman and Jethmalani put up strong arguments against NJAC, maintaining that it would compromise the independence of the judiciary and give primacy to the executive.

They argued that the right to appointment of judges lay at the core of the independence of the judiciary and formed a part of the basic structure of the Constitution. The landmark judgements were binding and could not be over-ruled by amending the Constitution.

Dismissing concerns that the NJAC was tilted in favour of the executive, it was argued that NJAC would consist of CJI and two more senior judges of the Supreme Court which in totality would constitute half the quorum. This would not take away from the independence of the judiciary; it would rather help to preserve it.

Attorney general Mukul Rohatgi had argued that primacy of the judiciary should not be seen as an absolute end. The executive and the judiciary must be taken on an equal footing to ensure better transparency and accountability.

Statements condemning the passing of NJAC

“Vesting the power of appointing judges on the executive is inappropriate and arbitrary," said Fali Nariman.

Ram Jethmalani called it an “evil absurdity."

Statements supporting NJAC

“The Constitution has devised a structure of power relationships with checks and balances wherein limits are placed on the power of every authority or instrumentality under the constitutional scheme," said attorney general Mukul Rohatgi.

“The independence of the judiciary is protected under the basic structure through various facets and is not drawn from the appointment of judges alone."

“In addition to the independence of the judiciary and separation of powers, public confidence stemming from democratic nature of our country also has to be kept in mind while making appointments."

2.Whether the appointment of two eminent persons from a non-judicial background would topple the pillar of independence of the judiciary?

Seeking diversity in the process of appointment of judges, under Article 124A of NJAC, two eminent persons, not from a judicial background would form a part of the six-member committee for selection of judges.

This provision was strongly attacked by those supporting the collegium system as it would for the first time grant power to an outsider to make a decision regarding appointment of judges which till now was seen as a pure judicial decision.

Refuting these claims, it was explained that NJAC envisages adopting a broad platform and looking beyond the perspective of the courtroom to serve the public, who are the ultimate seekers of justice.

“One way to look at it is that such a person may not possess legal acumen, but is bound to have a deeper understanding of life beyond the courtroom. We have to look beyond and cannot be oblivious to the world outside. It would not be wise to continue on a path completely insulated from the world," said attorney general, Mukul Rohatgi.

3. Whether the power of voting to non-judicial members of NJAC would amount to bad appointments?

Scepticism regarding suitability of two non-judicial persons as members of the selection committee was expressed by the bench during the course of arguments.

This was mainly to understand who these people would be and how they would operate among the others in the selection committee.

Statements against NJAC

Justice Khehar and Lokur raised questions such as:

“Would such persons have to be jurists? If not, how would they have access to information to make a sound decision?"

“The possibility of abuse of veto power is extremely high as these two persons could together strike out an otherwise valid appointment."

“What if such person is found to be shady? What is the procedure of removal of such person?"

Statements supporting NJAC

“We have presented the skeleton, the flesh and blood is still to be instilled into the Act" said Rohatgi.

It was observed that these questions were based on scepticism and made in a vacuum as the commission was still to be constituted.

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Updated: 16 Oct 2015, 07:48 PM IST
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