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Insights into Editorial: NJAC – An Anti-Constitutional Judgment?

Insights into Editorial: NJAC – An anti-Constitutional Judgment?

30 October 2015

By striking down the 99th constitutional amendment, the Supreme Court of India has clearly indicated that NJAC (National Judicial Appointments Commission) is not a credible alternative to the Supreme Court’s ‘collegium.’

However, some experts are not satisfied with the Court’s judgment. Why?

  • They are upset by the fact that the verdict upholds an extra-constitutional forum, created by the Supreme Court’s own members to serve its own ends, in the place of a system lawfully enacted by a popularly elected Parliament.
  • According to them, the judgment fails to adequately answer the fundamental question at the root of the controversy: how is judicial primacy in making appointments to the higher judiciary a part of our Constitution’s basic structure?

How proponents of the NJAC view the collegium?

According to them, the supreme court, in the second judges case, 1993, wrongly interpreted the word ‘consultation’ used in Articles 124 and 217, to mean concurrence. The court then held that the executive was bound by the advice of the CJI in making appointments to the higher judiciary.

And hence, it is being alleged that the collegium is a pure creation of the supreme court through second judges case.

What the constitution says?

  • The constitution accords to the President the power to appoint judges to the Supreme Court and to the various High Courts. In performing this function, the executive is required to compulsorily consult with certain persons.
  • To make appointments to the Supreme Court, the Chief Justice of India (CJI) must always be consulted. In elevating persons to a High Court’s bench, in addition to the CJI, the Chief Justice of that High Court and the Governor of the State concerned, acting through his or her Council of Ministers, must be mandatorily conferred with.

How proponents of NJAC defend it?

  • According to them the enactment of the 99th Amendment was intended at redressing the imbalance created by the verdict of court in second judges case.
  • For them, NJAC would have been a more broad-minded forum, providing a genuine chance to participate and influence the selection of our higher judiciary — not merely to the Supreme Court and the executive, but also to laypersons (eminent persons) outside the constitutional framework.

Why the court struck down NJAC act?

The court has held that the appointment of judges, coupled with primacy of judiciary and the CJI, was part of the basic structure of the Constitution and that the parliament, through NJAC act, violated this basic structure.

Conclusion:

There is an argument that the Constitution envisages and puts a system in place to ensure the balance of power involving the executive, the legislature and the judiciary. The judiciary has the power and jurisdiction to review the functioning of the executive and the legislature and thus, it is supremely important that the appointment of judges remains above board. With evident loopholes in the collegium system, it appears that a review of the verdict by a larger bench is necessary.