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The much  awaited judgment in the NJAC case [Writ Petition (Civil) No. 13 OF 2015 Supreme Court Advocates-on-Record -Association and another v. Union of India] has been pronounced by the 5 judges bench of the Hon’ble Apex Court . The court has struck down The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014, declaring them to be unconstitutional and void with a majority of 4:1. The court has also rejected the respondent’s plea for reference to a larger bench for the reconsideration of the Second and Third Judge’s cases [(1993) 4 SCC 441, and (1998) 7 SCC 739, respectively]. The collegium system for appointment and transfer of judges has been restored.  The court has further listed the case on November 3, 2015 for considering opinions regarding the improvement in the collegium system.  Though I am very humble as compared to the legal luminaries involved in this case but being the part of the legal fraternity of the world’s largest democracy, I think it is my right as well as duty to express myself regarding this major issue in hand.

Let me begin from the very beginning, the first judge’s case (S.P.Gupta v. Union of India AIR 1982 SC 149) gave the primacy to the executive in appointments to the higher judiciary, declaring that the advice of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”  The results were not good enough to suggest that we should have an executive dominant system of appointments.

In 1991 the question of judicial appointments came for consideration before the SC in Subhash Sharma v. Union of India (1991 Supp (1) SCC 574), the 3 judges bench opined that the majority view, in the First Judges case, should be considered by a larger bench. Mostly this case is missed out or only noted as a judgment referring the matter to a larger bench but in this case a very significant observation was made-

"We are aware of the position. The need to set up the National Judicial Commission through a Constitutional Amendment is in contemplation. In the event of the amendment being carried and a National Judicial Commission being set up the characters of the ratio in S.P. Gupta's case on the status of the Chief Justice of India may not be necessary to be examined. In view of the fact that by the amendment of the Chief Justice of India would become the Chairman of the Commission. In case the Commission is not appointed, the two questions indicated above which are vital, had to be decided by a larger Bench".

Thus the court in that judgment itself affirmed the idea of a judicial commission for the appointment of judges.

In 1993 the 9 judges bench considered the questions referred to it in the second judge’s case (Supreme Court Advocates on Record Association v. Union of India AIR 1994 SC 268). The majority verdict gave back CJI’s power over judicial appointments and transfers. It says the CJI only need to consult two senior-most judges. Court held that 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, the verdict reasoned. However, confusion prevails as the CJIs start taking unilateral decisions without consulting two colleagues. The President is reduced to only an approver.

To clarify the position the then President K.R. Narayanan  sought a reference from the SC in the third judge’s case(Special Reference No.1 of 1998 AIR 1999 SC 1), the Supreme Court laid down that the CJI should consult with a plurality of four senior-most Supreme Court judges to form his opinion on judicial appointments and transfers. The crux of the second and third judges case is that the Judiciary should have primacy.

In 2000 the Venkatachaliah Commission was set up by NDA government to review the working of the constitution. In its report the commission recommended the formulation of a judicial commission comprising of:

(1) The Chief Justice of India:


(2) Two senior most judges of the

Supreme Court: Member

(3) The Union Minister for Law and

Justice: Member

(4) One eminent person nominated by the President after consulting the

Chief Justice of India: Member

This report was shortly followed by The Constitution (Ninety Eighth Amendment) Bill, 2003 introduced by the NDA government which aimed at establishing a National Judicial Commission according to the suggestions of this commission but before this bill could be passed the Lok Sabha dissolved.

In 2013 the UPA government came up with The Constitution (120th Amendment) Bill, 2013 which provided for a six member Judicial Appointments Commission consisting of three judicial and three non-judicial members, thus giving equal say to both and primacy to none. I remember that both, the Law Minister Mr. Sibal (who introduced the bill) and the Leader of Opposition Mr. Jaitley were lauding the Venkatachaliah Commission’s report despite the fact that the composition of JAC was wayward from the report that suggested judicial primacy in the judicial commission. However this bill also couldn’t get passed and the Lok Sabha dissolved.

In 2014 the NDA government introduced The Constitutional (121st Amendment) Bill, which was subsequently passed by both houses of the parliament, ratified by 16 state legislatures and  assented by the President; NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015. By this NJAC case The Constitution (Ninety-ninth Amendment) Act, 2014 and The National Judicial Appointments Commission Act, 2014 have been declared null & void by the court which is the issue in hand.

Similar to JAC it also provided for a six member commission with three judicial and three non-judicial members. The twist however was that any two members may veto appointment of any judge, which tends to give an upper hand to the executive at times as any two non-judicial members can easily veto the choice of the judicial members. Not going into deep legalities of the 1030 page judgment, on the basis of the conclusions given by Hon’ble judges in their respective judgments it can be said that the 2014 amendment is being struck down as it is against the principles of ‘separation of powers’ and ‘independence of judiciary’ and thus violative of the basic structure of the constitution to which I cannot agree more.

I started the post with the heading, ideal system but haven’t suggested it so far, actually I have. According to me the most apt and suitable system would be a judicial commission as recommended by the Venkatachaliah Commission. A five member body of three judicial and two non-judicial members consisting of the Hon’ble CJI and two senior most judges of the apex court, the Minister of Law & Justice and an eminent person. I would suggest only two changes to the recommendations of the Venkatachaliah Commission, first, that the eminent person should be replaced with eminent jurist and second, that he must be appointed on the recommendation of CJI, Prime Minister and Leader of Opposition, this would ensure fairness and keep out any arbitrariness.

The reason behind my opinion is that it is in consensus with the judgments of the Hon’ble Supreme Court of India. The idea of a judicial commission has been affirmed in the Subhash Sharma’s case itself and in the instant judgment also, the idea of a judicial commission has not been entirely denied but the idea of NJAC with arbitrary composition and powers has been struck down. The greater number of judicial members in the commission ensures judicial primacy in appointments and transfers thus following the judgment in second and third judges case. The presence of the Law Minister would provide the executive representation in the appointments which is being much sought for.

©Prakhar Saran

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