Constitution (Ninety-Ninth Amendment) Act and the NJAC Act declared as unconstitutional

Supreme Court: A major breakthrough was achieved in the controversy surrounding the validity of the National Judicial Appointments Commission (NJAC) when the Constitution Bench comprising of J.S. Khehar, M.B. Lokur, Kurian Joseph, A.K. Goel and J. Chelameshwar, JJ., with a ratio of 4:1 declared the 99th Amendment to the Constitution and the subsequent National Judicial Appointments Commission Act, 2014 to be void and unconstitutional. The Majority also held that the “Collegium System” of appointment of judges is to be made operative once again after this decision. However the Bench left the discussion open to consider the introduction of appropriate measures for an improved working of the Collegium system.

In the present case where the constitution of the NJAC for appointment of Supreme Court and High Court Judges was under the scanner, J.S. Khehar, M.B. Lokur, Kurian Joseph and A.K. Goel, JJ., decided in favour of declaring the NJAC as unconstitutional,   whereas  J. Chelameshwar, J remained in dissent.

As per the majority, the issue of appointment of Judges has direct nexus with the independence of judiciary; therefore the contention by the Government to the contrary is completely baseless. It was further observed that the issue of appointment and transfer of judges is a matter of great significance which cannot be left to the moral strength of the individuals and where judicial primacy is a necessity, thus acceptance of any alternate mechanism for appointment is out of question. Articles 124A (1)(a) and (b) as introduced by the Amendment, does not ensure judicial primacy in the matter of appointment and transfer, therefore it encroaches upon the independence of judiciary thereby violating the basic structure of the Constitution.

According to J. Chelameshwar, J. the questions before the Court were that whether the Collegium system is an established mechanism for appointment or the Parliament has any authority to create another alternative for the same. Agreeing with the contention of Attorney General Mukul Rohatgi, Chelameshwar, J. observed that the 99thAmendment does not abrogate the basic structure of the Constitution, as it does not invest the absolute power to the President to appoint or transfer judges. Furthermore the NJAC Act ensures that no unworthy candidate shall be appointed as a Judge as long as 2 members from the Commission view the candidate to be incompetent. He further added that the presence of the Law Minster does not in anyway undermine the independence of Judiciary but his exclusion would severely undermine the say of a democratic government chosen by the people and would be destructive to the basic feature of checks and balances. [SCORA v. Union of India, 2015 SCC OnLine SC 964]

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