Refusing to give the Centre or civil society a bigger role in judicial appointments, the Supreme Court (SC) by a 4:1 decision on Friday scrapped both the National Judicial Appointments Commission (NJAC) and the related Constitutional Amendment as “unconstitutional.”
The five-judge Constitution Bench simultaneously revived the collegium system and invited suggestions to make collegiums more transparent. The matter will now be heard on November 3.
With the exception of Justice J Chelameswar who upheld the Constitutional Amendment Act, the remaining four judges, Justices JS Khehar, Madan B lokur, Kurian Joseph and Adarsh Goel, through separate judgements, concluded that the 99th Constitutional Amendment Act and the NJAC Act were both opposed to preserving “independence” and “primacy” of the judiciary, considered part of the basic structure of the Constitution in matters of appointing judges.
With one stroke, the court wiped out Articles 124A, 124B and 124C and replaced them with the original Articles in the Constitution and restored the earlier position as laid down by the two landmark decisions of October 6, 1993 and October 28, 1998 that introduced and validated the collegium system of appointment of judges.
The majority Bench struck down the two Central Acts and said: “The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance.” The NJAC was meant to be a six-member panel. Besides CJI and two senior SC judges, it consisted of law Minister and two eminent persons. Not only had the two Houses of Parliament approved the NJAC, 28 State Assemblies too had ratified it.
The presence of law Minster representing the political executive in the NJAC was seen by the Bench as a threat to “independence of judiciary”. In his independent decision, Justice Kehar felt that a judge appointed by this process involving the law Minister may not be able to resist or repulse a plea of “conflict of interest”, when raised by a litigant involving the Government on the opposite side. He also examined the issue from the angle of possible “political influence” as judges may remain indebted to “reciprocity and feelings of payback to the political executive” that can be “disastrous to independence of judiciary”.
The same logic was extended to the participation of Prime Minister, leader of Opposition of lok Sabha in the process of choosing eminent persons that the Bench termed as a “retrograde” step.
The Bench also objected to eminent persons on board the NJAC who comprised “one-third strength of the NJAC”, double that of the political-executive component. With the Act not defining qualifications for the selection of eminent persons by a committee of CJI, Prime Minister and leader of Opposition, the Bench was at a loss to understand what input they could possibly provide. What worried the Bench was the arrangement under the Act by which any two members could defeat a proposal.
Justice lokur described the power given to eminent persons as “virtually a monarchical power” with no accountability. This meant that even if judicial members in NJAC decide one way with the law Minister on their side, the eminent persons can still ensure the proposal does not go through. “Vesting of such authority in the eminent persons who have no nexus to the administration of justice is clearly unsustainable in the scheme of independence of judiciary…and would impact primacy of judiciary.”
The Centre now has an option to file a review petition and even curative plea, but for the present the Government’s attempt to usher in judicial reforms by seeking a greater role in judges’ appointment has suffered a setback. Attorney General Mukul Rohatgi, Solicitor-General Ranjit Kumar along with a battery of senior lawyers led by the likes of K Parasaran, KK Venugopal, TR Andhyarujina, and Harish Salve had persuaded the SC that NJAC was the only alternative in the light of defects found in the present system of judicial appointments. They even cited practice followed in other countries where non-judicial persons appoint judges.
However, the Bench cited another study to show that global trend was changing as there is a move to free judiciary from executive and political control. “It is imprudent to ape a system prevalent in an advanced country with an evolved civil society,” said Justice Khehar, favouring “least political nexus” in matters of judicial appointments.
By opening itself to suggestions to improve the collegium system, the Bench acknowledged the fact pointed out even by the petitioners who challenged NJAC that proceedings under collegium lack transparency. Justice lokur said in as many words, that the procedure for appointment of judges needs “fine tuning”. This will now be heard on November 3.