The 99th constitutional amendment to replace the collegium system on appointment of judges to higher judiciary damages the basic feature of the Constitution by which the primacy of judiciary has been given a go-bye, Justice Adarsh Kumar Goel today said.
"I would conclude that the new scheme (amendment) damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary. Under the new scheme such primacy has been given a go-bye. Thus the impugned amendment cannot be sustained," he said.
He said in view of his conclusion about the amendment being beyond the competence of the Parliament, he does not consider it necessary to discuss the validity of the National Judicial Appointments Commission (NJAC) Act in detail as it cannot survive once the amendment is struck down.
Justice Goel said that the amendment and the NJAC Act are struck down as "unconstitutional" and the pre-existing collegium system stands revived.
"Since the system existing prior to amendment will stand revived on the amendment being struck down and grievances have been expressed about its functioning, I am of the view that such grievances ought to be considered.
"It is made clear that grievances have not been expressed by the petitioners about the existence of the pre-existing system of appointment but about its functioning in practice. It has been argued that this court can go into this aspect without re-visiting the earlier decisions of the larger benches. I am of the view that such grievances ought to be gone into for which the matter needs to be listed for hearing," he said.
Justice Goel said under the new scheme, the Law Minister has been given role equal to the CJI and right from the commencement of the Constitution, the role of the Law Minister was never envisaged while initiating the process and finalizing it.
"Appointment of judges of the Supreme Court and appointment/ transfer of judges of the High Courts, can certainly be influenced to a great extent by the Law Minister and two nominated members, thereby affecting the independence of judiciary," he added.
