The Supreme Court on Thursday asked for the central government's response to contentions that certain provisions of NJAC Act of 2014 dealing with selection of high court judges violated the federal structure and were substantive than procedural in nature.
Asking Solicitor General Ranjit Kumar to address this issue, an apex court constitution bench comprising justices Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel observed: "This will destroy the federal structure."
The provisions related to the appointment of a high court chief justice and that the National Judicial appointment Commission could forward to high court chief justice for his views the names for appointment of judges to that high court.
The court asked the Solicitor General to address the issues after senior counsel Arvind Dattar appearing for the Madras High Court-based Service Bar Association assailed Section 6(1) and Section 6(3) of the NJAC Act coupled with their requirement of "ability, merit and any other criteria of suitability".
Dattar said that the NJAC Act was enacted for putting in place a procedure for the appointment of judges to the apex court and high courts, including their chief justices.
But there were provisions under Section 6 and Section 12 which were substantive for laying down the qualifications of those who could be considered for appointment as judges.
He said that the worst part was that all these rules and regulations were subject to review or amendment by parliament which, he said, offended the independence of judiciary, one of the basic structures of the Indian Constitution.
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The constitution bench is hearing a batch of petitions, including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others challenging the constitutional validity of the Constitution (99th Amendment) Act, 2014 and NJAC Act, 2014.
Pointing to the provision on "ability, merit and any other criteria of suitability", Dattar said that "suitability becomes synonymous with ability when it becomes norm for the selection of judges".
Dattar said that he had no qualms in examining the "ability, merit and any other criteria of suitability" of a person being considered for appointment as a judge but the same should find place in the constitutional provision instead of being put in a law which can be amended by parliament by simple majority.
Justice Khehar said that the power to frame rules and regulation is delegated in the NJAC by the NJAC Act, 2014, passed by parliament.
Parliament could have spelt out these rules and regulations on its own and put them in the NJAC Act without delegating it the NJAC, said Justice Khehar.
"So far as procedure (to be followed by NJAC for the appointment of judges) is concerned, the source of power (parliament) which has delegated the power to NJAC (to frame rules and regulation) says I will oversee it and put it under light," Justice Khehar said while asking what was wrong in it.
"It is abhorrent to say that rules and regulation framed by the NJAC will be subject to parliamentary review or changes," Dattar said contending that the "eligibility criteria can't be laid down by a parliamentary law and can only be done in the exercise of the constituent powers by parliament" as any such fixing of qualifications by a statute impinges on the independence of judiciary.
"We are not denying the powers of parliament to (spell out) criteria for the appointment of judges but let it do through the exercise of its constituent powers and not simple lawmaking powers," Dattar told the court, clarifying that he was not juxtaposing parliament and judiciary.