Supreme Court strikes down NJAC; collegium system to stay6 min read . Updated: 17 Oct 2015, 12:02 AM IST
The five-judge bench, however, says that it would seek the assistance of lawyers to improve the collegium system; this will be heard on 3 November
The Supreme Court on Friday dealt a severe setback to the National Democratic Alliance (NDA) government, striking down a constitutional amendment that sought to give the executive a say in the appointment of top judges on grounds that it would undermine the independence of the judiciary.
The government reacted with dismay to the watershed 4-1 majority verdict by a five-judge constitution bench that both the Constitution (Ninety-ninth Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014, were unconstitutional.
“While holding very dearly the principle of independence of judiciary, I regret to say that parliamentary sovereignty has received a setback today... Questions have been raised on parliamentary sovereignty," said Union minister Ravi Shankar Prasad, who piloted the bills in Parliament when he was law minister.
As a potential confrontation loomed between the executive and the judiciary, law minister D.V. Sadananda Gowda said the government will decide its course of action after consulting legal experts.
Both the Lok Sabha and the Rajya Sabha had supported the bills “100%" and 20 state legislatures had cleared them, he said.
“We are surprised by the verdict of the Supreme Court," Gowda said of the judgement, which enabled the restoration of a two-decades-old system of Supreme Court and high court judges being chosen by a small group of apex court judges known as a collegium. “The will of the people can be represented through Parliament, through the legislature only; it cannot be brought to the notice of the whole world by some other means."
The government sought to replace the existing system, which critics said was opaque, with a six-member NJAC comprising the Chief Justice of India (CJI), two senior-most Supreme Court judges, the law minister and two eminent persons. The eminent persons would be chosen by a selection committee made up of CJI, the Prime Minister and the leader of the opposition.
In its 1,024-page verdict, the apex court said: “It is to be assumed that the independence and integrity of the judiciary is of the ‘highest importance’ not only to the judges but to the citizens seeking resort from a court of law against the high-handed and illegal exercise of power by the executive."
The five-judge bench comprising justices J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel, however, said it would seek the assistance of lawyers to improve the collegium system and introduce appropriate corrective measures, if required. This will be done on 3 November.
Four judges ruled in the majority, while justice Chelameswar was of the opinion that the constitutional amendment was valid.
The majority said the two laws affect the independence of the judiciary, and judicial appointments, among other things, should be protected from executive control.
“I respect the verdict of the court, but I don’t hail the verdict. According to me, the verdict is flawed," attorney general Mukul Rohatgi told reporters “The verdict has ignored the unanimous will of Parliament and the will of more than half the state legislatures. Appointments will be continued to be made in an opaque system where all the stakeholders will not have their voice."
In the verdict, justice Khehar opined that the NJAC Act, 2014, was an impingement upon the principles of “independence of the judiciary", “separation of powers" and violative of the “basic structure of the Constitution".
M.P. Singh, a constitutional expert and former vice-chancellor of the West Bengal National University of Juridical Sciences, said that while the idea of NJAC was not wrong, its formation had raised several questions.
“The original Constitution only sought judges to be consulted for appointing judges. This amendment changed the original position and brought other non-judicial members into the process. To that extent, it affects the position of judges in appointment of judges... This amendment completely changed what the original Constitution makers had in mind to reduce political interference in judicial appointments."
The court also rejected a plea for referring the case to a larger bench to reconsider two nine-judge bench decisions from 1993 and 1998 which introduced the collegium system and established the primacy of the judiciary in the appointment of judges.
“I hail the judgement for not allowing the untimely move sought by the government. It has not allowed ill-conceived mindsets to break through the stricture of independence that has been in existence," said Kapil Sibal, who was law minister in the earlier United Progressive Alliance regime.
His colleague in the Congress party and another former law minister, Ashwani Kumar, counselled caution.
“For the moment, it is necessary to ensure that the legislative and judicial wings of the state work in harmony within the framework of the Constitution and it is imperative to avoid a conflict or distrust between the two branches of government. This would testify to the maturing of our constitutional democracy," he said.
Chelameswar, in his minority verdict, found that the assumption that independence of the judiciary is preserved through its primacy in the appointment process is “empirically flawed without any basis either in the constitutional history of the nation or any other and normatively fallacious apart from being contrary to political theory".
He agreed with Rohatgi in saying that exclusion of the executive removed an essential feature of checks and balances in judicial appointments.
Chelameswar also said that introduction of the two independent people (as “eminent persons") in the process of appointments would ensure that there was no trade-off between the other members—the apex court judges and the law minister.
“There is no accountability in this regard (appointments made through the collegium). The records are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country," added Chelameswar.
The government is unlikely to seek a review of the ruling.
“I don’t think it’s a case for review at all. The judgment is very detailed. Reviews are generally filed when things are missed out," said Rohatgi.
The 99th Constitution Amendment Act, 2014, and the NJAC Act were first introduced in Parliament in August last year. Both Houses swiftly passed the two bills.
President Pranab Mukherjee gave his assent to the two bills on 31 December after the government received ratification for the constitutional amendment from as many as 16 states.
That number has risen to at least 20, attorney general Rohatgi told the court.
The government notified the two laws on 13 April, amid the litigation which finally reached a five-judge constitution bench.
In hearings which saw the participation of some of the best legal minds of the country, the issue of the primacy of the judiciary in appointments was a consistent bone of contention.
Renowned names from the legal fraternity such as Fali Nariman and Ram Jethmalani put up strong arguments against NJAC, maintaining that it would compromise the independence of the judiciary and give primacy to the executive in judicial appointments.
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.
“Today’s judgement...raises our respect and gratitude for judges as defenders of the Constitution. Our panoply of human rights and democracy has gone up sky- high. The nation owes them their heartfelt gratitude," Jethmalani told news channel NewsX.
PTI contributed to this story.