The collegium system remains operative
Declaring that the judiciary cannot risk being caught in a “web of indebtedness” towards the government, the Supreme Court on Friday rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
“It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. 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,” Justice J.S. Khehar, the presiding judge on the five-judge Constitution Bench, explained in his individual judgment.
The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.” It held that the collegium system, as it existed before the NJAC, would again become “operative.”
But interestingly, the Bench admitted that all is not well even with the collegium system of “judges appointing judges”, and that the time is ripe to improve the 21-year-old system of judicial appointments.
“Help us improve and better the system. You see the mind is a wonderful instrument. The variance of opinions when different minds and interests meet or collide is wonderful,” Justice Khehar told the government, scheduling further debate for November 3 on bettering the working of the collegium system.
Every judge on the Bench, comprising Justices J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel, has written separate judgments explaining the debate, reasonings and individual conclusions they arrived at about the NJAC and the Constitutional Amendment.
The entire bulk of the series of judgments and orders run to about 1,000 pages.
While four judges held as unconstitutional the 99th amendment of the Constitution, Justice J Chelameswar differed with them and gave his own reasons for upholding its validity. Justice Khehar, who pronounced the judgment for the bench, said that the system of appointment of judges to the Supreme Court and the Chief Justice and judges of the high courts and transfer of judges from one high court to another has been existing in the Constitution prior to the 99th amendment.
The bench also said it was willing to take suggestions for improving the collegium system of appointment of judges and posted the hearing for November 3. Justice Khehar said each one of us have recorded their reasons and order has been jointly signed.
Giving out the details of the order, senior lawyer Prashant Bhushan said that the government’s law has been struck down. “The collegium will continue. The court said that the government’s law of bringing in the NJAC would hamper the independence of the judiciary. The old collegium system gets restored from today for the time being,”he said.
Taking a different view, senior lawyer Mahesh Jethmalani said that the NJAC would not have undermined the independence of judiciary. However, he maintained that the supremacy of the judiciary has been upheld. “There is a need for transparency . The appointment of judges should come under RTI,”he said.
Another senior lawyer Ujjwal Nikam claimed that it is “too unfortunate” that that the NJAC has been struck down. “I think now it is for the SC to make full proof system so that there is no suspicion. SC has also agreed that there should be some internal mechanism and should not be any interference,” he said.
Relieved over the verdict, senior lawyer Sanjay Hegde said that the NJAC is violative of the basic stricture of the constitution. “The independence of the judiciary is non-negotiable,” he said.
The five-judge bench had reserved its judgment on July 15 on a bunch of pleas challenging the constitutional validity of the NJAC Act and the 99th amendment in the Constitution after a marathon hearing for 31 days on the issue.
The judgement comes on a batch of pleas challenging the constitutional validity of NJAC which brought to an end the two-decade-old collegium system of judges appointing judges in the higher judiciary.
The petitions challenging the new legislation were filed by Supreme Court Advocates on Record Association (SCAORA) and others contending that the new law on the selection and appointment of judges was unconstitutional and aimed at hurting the independence of judiciary.
However, the Centre had defended the introduction of the new law saying that the two-decade-old collegium system where judges appointed judges was not free from defects and got the support of the Supreme Court Bar Association.
The measure was also supported by 20 state governments which ratified the NJAC Act and the constitutional amendment. One of the contentious provisions of the new law was the inclusion of two eminent persons to the NJAC which included Chief Justice of India, two senior most judges of the apex court and the Union Law Minister.
Under the law, two eminent persons were to be nominated by a committee consisting of the Chief Justice of India, Prime Minister, and Leader of Opposition in the Lok Sabha or where there is no such LoP, the leader of single largest Opposition Party in the House.
Further, it envisaged that of the two eminent persons, one would be from the Scheduled Castes or Scheduled Tribes or OBCs, minority communities or a woman.
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