The Supreme Court will hear on Monday a challenge to the constitutional validity of the National Judicial Appointments Commission Bill for appointing judges to the higher judiciary on the grounds of its being unconstitutional, invalid and violating the constitution's basic structure.
A bench of Chief Justice R.M. Lodha, Justice Kurian Joseph and Justice Rohinton Fali Nariman said Thursday the matter would be heard along with other similar petitions listed for hearing after senior counsel Sushil Kumar Jain mentioned a plea by Supreme Court Advocates-on-Record (SCAOR) Association and another by counsel R.K. Kapoor.
The bill, passed by parliament earlier this month, aims to replace the existing collegium system for the appointment of judges to higher judiciary. Parliament also passed constitution's 121st amendment bill paving the way for this.
The proposed NJAC has six member that includes CJI and two senior most judges next to him in the apex court, the law minister and two eminent people.
The petition by the SCAOR Association, vetted by eminent jurist Fali Nariman, has sought a declaration that a constitutional amendment bill passed by parliament "violates the basic structure of the constitution and is invalid, void and unconstitutional".
The article 124(2), as amended by the bill, now reads: "Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A.
The petition also sought the declaration that article 124(2) and article 217(1) (on appointment of high court judges), as enacted originally, continue to remain in force and the judgements of the apex court interpreting the same to create collegium system will continue to hold the field.
The SCAOR Association has sought direction to the central government "not to enforce in any manner" the amended provisions provided under the constitutional amendment bill passed by Lok Sabha earlier in August.
It has sought further directions to restrain the government from going ahead seeking the seeking ratification of it by state legislatures, contending the constitutional amendment is unconstitutional, invalid and void as violating the basic structure of the constitution.
The petition says that the bill for setting up National Judicial Appointment Commission was introduced and passed both by the Lok Sabha and the Rajya Sabha even before article 124 (2) was amended, thus creating a dichotomy where bill to set up the NJAC was passed before the constitutional provision was amended.
As the provisions of article 124(2) as originally enacted were in force, the introduction, consideration and passing of the the National Judicial Appointments Commission Bill, No.96 of 2014, was "an exercise in futility and a nullity", it said.
The petition also held that the independence of the judiciary is an integral part of the constitution's basic structure, "which inter alia, includes the necessity to eliminate political influence even at the stage of appointment of a Judge, the executive element in the appointment process being minimal".
It contended that the proposed NJAC takes away the primacy of the CJI and two senior most apex court judges next to him as their collective opinion can be vetoed by other three members that includes the law minister, or the the political arm of the executive.
The other two eminent people on the NJAC are to be selected by a committee comprising the prime minister, the leader of opposition and the CJI.
The petition has also challenged the incorporation of article 124C which, it says, is an "integral part of the mode and manner of appointment of judges which confers unbridled power to parliament to regulate by ordinary law, inter alia, 'the manner of selection of persons for appointment' to the higher judiciary without any safeguards whatsoever" to secure the independence of the judiciary.
