NJAC Act unconstitutional, collegium system to continue:
The Hindu Business Line, October 16, 2015
In a landmark
judgment, the Supreme Court today declared as unconstitutional
the law brought by the NDA government to replace the over
two-decade-old collegium system of judges appointing judges in
the higher judiciary.
The apex court,
which quashed the National Judicial Appointments Commission (NJAC)
Act in an unanimous verdict, also declared as unconstitutional
the 99th amendment to the Constitution to bring in the Act to
replace the collegium system.
verdict quashing the NJAC Act was delivered by a five-judge
Constitution bench comprising justices J S Khehar, J Chelameswar
M B Lokur, Kurian Joseph and A K Goel which also rejected the
plea of Central government to refer for review to larger bench
the 1993 and 1998 verdict of the apex court on the appointment
of judges to the higher judiciary.
While four judges
held as unconstitutional the 99th amendment of the Constitution,
Justice J Chelameswar differed with them and gave his own
reasons for upholding its validity.
Justice Khehar, who
pronounced the judgment for the bench, said that the system of
appointment of judges to the Supreme Court and the Chief Justice
and judges of the high courts and transfer of judges from one
high court to another has been existing in the Constitution
prior to the 99th amendment.
The bench also said
it was willing to take suggestions for improving the collegium
system of appointment of judges and posted the hearing for
Justice Khehar said each one of us have recorded their reasons
and order has been jointly signed.
The five-judge bench
had reserved its judgment on July 15 on a bunch of pleas
challenging the constitutional validity of the NJAC Act and the
99th amendment in the Constitution after a marathon hearing for
31 days on the issue.
challenging the new legislation were filed by Supreme Court
Advocates on Record Association (SCAORA) and others contending
that the new law on the selection and appointment of judges was
unconstitutional and aimed at hurting the independence of
However, the Centre
had defended the introduction of the new law saying that the
two-decade-old collegium system where judges appointed judges
was not free from defects and got the support of the Supreme
Court Bar Association.
The measure was also
supported by 20 state governments which had ratified the NJAC
Act and the constitutional amendment.
One of the
contentious provisions of the new law was the inclusion of two
eminent persons to the NJAC which included Chief Justice of
India, two senior most judges of the apex court and the Union
Under the law, two
eminent persons will be nominated by a committee consisting of
the Chief Justice of India, Prime Minister, and Leader of
Opposition in the Lok Sabha or where there is no such LoP, the
leader of single largest Opposition Party in the House.
envisaged that of the two eminent persons, one would be from the
Scheduled Castes or Scheduled Tribes or OBCs, minority
communities or a woman.
As per the Act, the
eminent persons shall be nominated for a period of three years
and shall not be eligible for re-nomination.
The issue of eminent
persons on the panel was a major bone of contention between the
parties and, on final day of hearing, the bench had differed
with the Centre, saying inclusion of laymen in the new system of
judicial appointments ?cannot work?.
provision for inclusion of two eminent persons, Attorney General
Mukul Rohtagi had said, ?If we can have laymen in some other
Commissions and Tribunals then why not in the six-member NJAC.?
Noted jurists like
Fali Nariman, Anil Divan and Ram Jethmalani were among prominent
senior advocates who had argued against the NJAC replacing the
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