A five-judge Constitutional bench has declared as “unconstitutional” the law that created a National Judicial Appointments Commission of six people including three non-judicial members. The court said the two decades-old system of judges being appointed or transferred by a collegium – a group of five senior judges – would continue.
The collegium system, where judges appoint judges,will continue, the court said.
The top court struck down the the 99th Constitutional amendment brought by the NDA government that would scrap the collegium system.
A five-judge constitution bench headed by Justice J S Khehar by 4:1 majority termed both the 99th constitution amendment and NJAC Act unconstitutional as it interfered with the independence of judiciary. Justice J Chelameswar was the dissenting judge in the 4:1 verdict.
The law was passed in Parliament, which approved a constitutional amendment even when the court was still hearing petitions challenging the government’s role in the appointment of judges. Justice Chelameswar reportedly said he supported the constitutional amendment.
The verdict runs into 1030 pages and also says the Supreme Court will hear proposals for improving the two-decade long collegium system.
Click here to read the full judgement
The bench revived the collegium system of appointment of judges, popularly referred to as judges-selecting-judges.
The collegium comprises the Chief Justice of India, four senior most judges of the Supreme Court and the chief justice of a particular high court and its two senior most judges. The NJAC, which was brought into existence after inserting a new article (Article 124A) in the Constitution, consists the Chief Justice of India as ex-officio chairperson, two other senior judges of the Supreme Court, the Union Minister of Law and Justice and two eminent persons to be nominated by a committee consisting the Chief Justice of India, the Prime Minister, the Leader of Opposition in the Lok Sabha or where there is no such Leader of Opposition, then the Leader of the single largest Opposition party in Lok Sabha.
The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.
The petitions challenging the new legislation were filed by the group, the Supreme Court Advocates on Record Association, and others, who contended that the new law would hurt the independence of the judiciary.
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The Centre had defended the introduction of the new law saying that the two-decade-old collegium system was not free from defects. It added that the Supreme Court Bar Association supported the new Commission. The creation of the Commission was also supported by 20 state governments which ratified the NJAC Act and the constitutional amendment.
At present, the Supreme Court is examining the constitutionality of the NJAC and has refused to accept the government’s demand that the matter be referred to a larger bench of 11 judges from the existing five-judge bench headed by Justice JS Khehar.
The apex court has scheduled November 3 for further hearings on the issue of improving the collegium system of appointment of judges.
BACKGROUND
The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. NJAC was born through the 99th Constitutional Amendment Act, passed in August 2014. In the same year Parliament passed the NJAC Act, 2014 in order to regulate the NJAC. Both Acts came into effect from April 13, 2015.
NJAC is a constitutional body proposed to replace the present Collegium system of appointing judges whereas under the Collegium system the Chief Justice of India and a forum of four senior-most judges of the Supreme Court recommend appointments and transfers of judges.
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The Supreme Court Bar Association was in favour of the legislation that would have allowed NJAC to appoint and transfer judges. It would have the power to probe cases of misconduct by judges, including those from the highest judiciary.
But Supreme Court Advocates on Record Association (SCAORA) and others had filed petitions contending the new legislation would compromise the freedom of judiciary.
COLLEGIUM SYSTEM
It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.
Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.
On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form.
In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegiums.
Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.
There is no mention of the collegium either in the original Constitution of India or in successive amendments.