Judicial Appointments Commission (JAC)
A plea was filed in the Supreme Court yesterday challenging the validity of the law setting up the National Judicial Appointment Commission to replace the collegium system for appointments to the higher judiciary on grounds it was an assault on the constitution’s basic structure and the independence of judiciary, despite the apex court having declined to hear an earlier petition last year for being premature.
UPDATE:The Supreme Court declined to grant an urgent hearing by another petitioner, senior advocate Bhim Singh, reported The Hindu.
The petition has also challenged the Constitution (Ninety Ninth Amendment) Act, 2014, that paved the way for the setting up of the commission. President Pranab Mukherjee had Dec 31, 2014, given his assent to the provision.
The parliament had in 2014 passed the National Judicial Appointment Commission Act so that government too may have a say in the appointment of judges to the Supreme Court and the high courts. The apex court Aug 25, 2014, had declined to entertain the plea challenging the act as being premature holding that it had yet to attain legislative finality.
The petitioner Bishwajit Bhattacharyya, a senior counsel and former additional solicitor general of India, sought quashing of both the act and the constitutional amendment act as bothe were “arbitrary, unconstitutional and defaces/defies/damages basic structure/feature of the constitution”.
Bhattacharyya said that the apex court was “the only institution in the country which is fiercely and independently upholding the interest of the common man. Any attempt to dilute or damage its independence must be thwarted, rebuffed and repelled with a heavy hand”.
Referring to the various provisions of the two legislations, he said that it not only takes away the pivotal position that the chief justices of India had in the appointment and transfer of judges but vests it with the central government.
He also pointed a provision in the act under which the central government has been empowered to recommend the NJAC fill the vacancies of judges in the Supreme Court and the high courts, noting this was contrary to the task earlier performed by the five senior-most apex court judges under the collegium system.
The petition by Bhattacharyya points to another provision in the act which says that NJAC shall recommend for appointment of the senior-most Supreme Court judge as the chief justice of India if he is “considered fit” to hold office.
“The word ‘considered fit’ opens up the possibility of superseding the senior-most judge of the Supreme Court of India and preventing him/her from becoming the next chief justice of India,” it said.
“This would severely compromise with the independence of judiciary” as all that would be required to prevent the senior-most Supreme Court judge from becoming the chief justice of India is objection to his elevation even by two non-judicial members,” the petition said.
Of the six members of the NJAC, three would be the Chief Justice of India and two senior-most apex court judges, the union law minister and two eminent people - one of which shall be from scheduled castes, the scheduled tribes, other backward classes, minorities or women.
Pointing out how the provisions of the NJAC Act were an assault on the independence of judiciary, the petition said: “This clause gives veto power to any two (may be even two non-judicial members) to out-vote all the three judges of the Supreme Court put together” in appointments.
“This real and predictable possibility amounts to frontal attack on the three senior-most judges (including the CJI) of the Supreme Court and is aimed at destroying the independence of judiciary,” it said.
Supreme Court advocate KV Dhananjay argues that the public interest litigations against the National Judicial Appointments Commission (NJAC) bill must fail, at least at this point in time…
Senior counsel Fali Nariman has added another to the four public interest litigations (PILs) against the National Judicial Appointments Commission (NJAC), which will be heard on Monday.
Together with advocate Subhash Sharma, he claimed that the constitutional amendment “severely affects and damages the basic structure of the Constitution viz the independence of the judiciary” and gives “unbridled power” to parliament, reported the Indian Express.
Allowing for any two out of three non-judicial members of the NJAC to scuttle appointments would take away from primacy of the opinion of the three senior Supreme Court judges on the NJAC. The law was counter to the nine-judge constitution bench judgment in the so-called Second Judges case - one of three cases that was fundamental in the establishment of the collegium system.
The National Judicial Appointments Commission (NJAC) was either an example of a perfect campaign by politicians or of massive good luck, argued Kian Ganz in the Mumbai Mirror on Sunday.
The Law Commission chairman Justice AP Shah has recommended that the tenure of the Chief Justice of India (CJI) should be fixed to at least two years, and that the Judicial Appointments Commission (JAC) should consist of at least four judges, including the CJI as chairperson, reported The Hindu and the Indian Express.
The minimum CJI tenure should take effect after the current roster of sitting Supreme Court judges in line for the CJI post will have retired by August 2022, with Justice NV Ramana as the last CJI under the old system, recommended Shah in a note he sent to the law minister Ravi Shankar Prasad.
Furthermore, he recommended that judges should have a three year “cooling off period” after retirement before they take up any government jobs. The JAC, apart from the four sitting Supreme Court judges, should also include the law minister, with an eminent jurist and an eminent member of civil society picked by the CJI, the prime minister and the leader of the Lok Sabha opposition.
Shah’s proposal was reportedly discussed in Monday’s meeting between the law ministry and top lawyers and retired judges.
The central government and its law minister Ravi Shankar Prasad are set to meet in Delhi with a number of advocates today, to discuss the shape of a constitutional amendment on judicial appointments, reported the Times of India.
The panel to give feedback on a possible change to the collegium system includes “former CJIs AM Ahmadi, AS Anand, VN Khare and RC Lahoti; former AGs K Parasaran, Soli Sorabjee and Ashok Desai; eminent lawyers Fali Nariman, Shanti Bhushan, Anil Divan, KK Venugopal and Harish Salve; eminent jurists NR Madhava Menon and Upendra Baxi [and] attorney general Mukul Rohatgi and solicitor general Ranjit Kumar,” according to the TOI.
The previous government's draft Judicial Appointments Commission Bill proposed a panel of the CJI and two Supreme Court judges, the law minister as well as two eminent citizens, who will be nominated by the prime minister, the CJI and the Lok Sabha's Leader of the Opposition - a position currently unfilled.
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