A plea was filed in the Supreme Court Monday 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.
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.
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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.