 "SC to pronounce verdict on validity of NJAC Act today")
A five-judge Constitution Bench of the Supreme Court on Friday declared the National Democratic Alliance government’s law for appointing judges of appellate courts unconstitutional on several counts. As such, the collegium system followed by the judiciary for the past two decades will be followed again.
However, the collegium system, said to lack transparency and promote nepotism, would be “fine-tuned” to obviate such criticism in the future, the court said.
A Bench, headed by J S Khehar, asserted: “In the matter of appointment of judges to the higher judiciary, as also in the matter of their transfer, the primacy in the decision-making process inevitably rests with the Chief Justice of India. This was expected to be expressed on the basis of the collective wisdom of a collegium of judges”. The system proposed in the National Judicial Appointments Commission (NJAC) Act violated the basic structure of the Constitution, the judgment said.
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“It needs to be ensured that the political-executive dispensation has the least nexus with the process of finalisation of appointments of judges to the higher judiciary,” it added.
The mere presence of the law minister on the selection panel would impinge on the principle of independence of judiciary and separation of powers, the 1,000-page judgment said. His presence, along with that of the prime minister, in the selection of two ‘eminent persons’ who could veto any decision would be a “retrograde step”, it said, adding it would be “disastrous” to include lay persons with undefined qualifications on the selection panel.
According to the collegium system devised by judges in two judgments in the 1990s, a panel comprising the Chief Justice of India and five senior-most judges of the Supreme Court will select judges for appointment to the 24 high courts and the apex court. It will also decide on the transfer of chief justices and judges of high courts.
The NJAC Act, passed by both Houses of Parliament, ratified by 20 states, approved by the president in December last year and notified in April this year, proposed a system in which the selection panel would comprise the chief justice of the Supreme Court, the two senior-most judges, the Union law minister and two eminent persons from any field.
Subsequently, the amendment and the Act were challenged by about a dozen petitioners in the Supreme Court. The matter was referred to a larger Bench, as the issues involved independence of the judiciary, the structure of the Constitution and the review of two earlier Constitution Bench decisions proposed by the collegium system.
Four of the five judges — Khehar, Madan Lokur, Kurian Joseph and A K Goel — concurred on the unconstitutionality of the law. The fifth, J Chelmeswar, held the Constitution amendment valid, but agreed with others on the illegality of the Act. Friday’s judgment doesn’t end the decades-long attempt to devise a transparent and consensual system of appointing judges. On November 3, another Bench will take up the issue of improving the collegium system.
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