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New Delhi: A three-judge bench of the Supreme Court on Tuesday referred petitions on the validity of the National Judicial Appointments Commission (NJAC) to a larger five-judge bench.

While the government claims that NJAC, established by law and a constitutional amendment, will strengthen the judiciary, its opponents say it will affect its independence.

For now, however, there will be no stay on the law and the government is free to go ahead with its move to notify the law and the amendment, and thereafter set up the commission that will appoint judges.

The court was considering pleas filed by advocates’ groups such as the Supreme Court Advocates-on-Record Association (SCAORA), Bar Association of India and individuals who challenged the basis of the NJAC Act and a related constitutional amendment.

The law was introduced by the National Democratic Alliance (NDA) government last year in an attempt to change the two-decade-old collegium system of appointing judges.

The petitions contend that the appointment of the commission threatens the independence of the judiciary.

They also point out that at the time when the NJAC Act was passed, the constitutional amendment had not come into effect. This meant, according to the petitioners, that Parliament was not competent to pass a law to this effect.

A bench of justices Anil R. Dave, J. Chelameswar and Madan B. Lokur referred the case to a larger bench for its consideration.

Senior lawyer Fali S. Nariman had, while arguing the case for SCAORA, told the court that there was a substantial question of law related to the interpretation of the Constitution, which required five judges to hear it.

Earlier, the government, through attorney general Mukul Rohatgi, had said that the challenges to the law and the constitutional amendment were premature and academic as the two had not come into force yet.

Although both the law and the constitutional amendment were passed by both houses of Parliament in August 2014 and received presidential assent on 31 December, the government has not notified the same.

“The question of maintainability of a petition can also be referred to a larger bench, based on general principles. I haven’t seen a copy of the order, so I will not comment on the case as such. But it had to go to a larger bench. I don’t think even the government would be happy with a three-judge bench deciding the issue," said Alok Prasanna Kumar, senior resident fellow working with constitutional law at Vidhi Centre for Legal Policy, a thinktank.

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