In its landmark verdict scrapping the National Judicial Appointments Commission (NJAC), the Supreme Court (SC) has sought to put to rest all contentions over Parliament’s supremacy and sovereignty. The apex court has held that the “will of the people is the Constitution” while Parliament represents the “will of the majority at a given time” which is “subordinate to the Constitution”. The judgment rendered by Justice Adarsh Goel came in response to the
Centre’s submission that the two Acts — 99th Constitutional Amendment and NJAC — represent the collective will of the people as they were passed by a unanimous vote of both Houses of Parliament. “The will of the people is the Constitution while Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution,” said Justice Goel, who along with three other judges ultimately held the NJAC to be unconstitutional.
He went on to state, “Even if the judiciary is not an elected body, it discharges the constitutional functions as per the will of the people reflected in the Constitution and the task of determining the powers of various constitutional organs is entrusted to the judiciary.” The Attorney General agreed the “last word” on the validity of a Constitutional Amendment is of the SC. However, as soon as the verdict was out, the political executive assailed it as an affront to the wisdom of Parliament and the will of the people.
While finding fault with the Parliamentary law, the court also outlined three things that could have saved the NJAC in the present form: limiting law Minister and eminent persons to an advisory role in NJAC; assigning an equal role to High Court Chief Justices at par with the Chief Minister and the Governor of the State in appointing HC judges; and ensuring that confidential information available with NJAC is kept out from the ambit of RTI.
With opposition to two eminent persons and law Minister in the NJAC selection panel seen as a major cause for striking down the law, Justice Goel said: “The situation may have been different if the amendment merely provided for advisory or recommendatory role to the law Minister and non-judicial members…In that case it may not have interfered with the primacy of judiciary in matters of appointment of judges.”
The other aspect related to the “reduced” role given to HC Chief Justices under the new system. “Chief Justices of High Courts have not been provided any constitutional say,” remarked Justice Goel.
NJAC allowed Chief Justices to nominate a name and thereafter the panel would take over. It will seek written views from Chief Minister and Governor of the State but not CJs, who is better placed to assess the merit. Even under Article 217, HC judges are appointed after mandatory consultation with HC Chief Justices. The NJAC script writers missed out on this point.
Finally, another grey area in the Act was pointed out by Justice Madan B lokur, who formed part of the majority decision. During the hearing of the case, A-G boldly asserted that information with NJAC will be available under the RTI to set standards of transparency. Justice lokur saw a red herring. He enquired about privacy of a person who has been considered or recommended to be judge of HC or SC. The Centre had no response. The judge commented: “These are difficult questions to which adequate thought has not been given and merely on the basis of a right to know, the reputation of a person cannot be whitewashed in a dhobi ghat.”