On The Brink: The NJAC Act and the legal battle for Democracy. Or was it Supremacy?

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In the recent times, media coverage has been rife with the constitutional challenge brought to the “judicial appointments amendment” or the 99th Constitutional Amendment (“99th Amendment”) which has introduced Article 124A and has amended Article 124 of the Constitution of India. Consequential amendments have also been made to Article 127, Article 128, Article 217, Article 222, Article 224, Article 224A and Article 231 of the Constitution. These changes aim to change the nature of judicial appointments and intend to provide the executive and the legislature with a say in judicial appointments in the Supreme Court and the High Court.

Theodore Olson, Former Solicitor General of the United States, perhaps had the best description for the present state of affairs in his article titled “Law Off Our Judiciary” in the Wall Street Journal in 2005 (It may be of anecdotal interest to the reader that the article contained a scathing critique of the senate confirmation process, Mr. Olson described the process as shambles and said that political interest has been the most culpable). He said that “it is time to take a deep breath, step back and inject a little perspective into the recent heated rhetoric about the judges and the courts”.

As this article also aims to act as a primer to the issue; these changes are of great importance the importance of these changes is that at present judges of the Supreme Court of India and the various High Courts of the country are appointed through a “collegium” system which has been established due to an interpretation to Article 124 which was granted in the case of Supreme Court Advocates on Association on Record Association v. Union of India (1993) 4 SCC 441 wherein the court essentially held that the opinion of the Chief Justice shall have primacy over the opinion of the executive in the matter of judicial appointments and the no appointment could be made by the President unless it was in conformity with the opinion of the Chief Justice. The court stated that this opinion of the Chief Justice was not to be his opinion alone; rather it had to be formed together with two senior most judges of the Supreme Court.  Subsequently, in 1998, the Supreme Court while delivering its opinion the Special Reference No.1 of 1998 Re: (1998) 7 SCC 739, gave the present day structure to the collegium, stating that collegiums should consist of Chief Justice and four of the senior most judges of the Supreme Court. This case also introduced a similar system at the High Court level, where the Chief Justice of the relevant High Court would have to consult the senior most judges of the High Court.

1This system is now sought to be replaced by a National Judicial Appointments Committee which will be composed of six members- the Chief Justice of India (“CJI”), the two senior-most judges of the Supreme Court, the law minister and two eminent persons. The NJAC Act states eminent persons will be will be selected by a three member committee which will comprise of the  CJI, Prime Minister and the leader of the opposition in the Lok Sabha, or if there is no leader of opposition, then the leader of the single largest opposition party.

The legal basis for this committee is that, In furtherance of Article 124A, the parliament has passed the National Judicial Appointments Commission Act, 2014 (‘NJAC Act”) to “regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of the High Courts and for their transfers and for matters connected therewith and incidental thereto.”

The group of petitions that have been filed before the Supreme Court of India, challenge the validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 and the NJAC Act, on the grounds that by the virtue of the amendment and the enactment of the NJAC Act, the basic structure of the Constitution has been altered and therefore, both, the Amendment and the Act should be set aside.  The Petitioners had requested the court that as per Article 145 (3) of the Constitution, since the matter should be referred to a bench of five judges because substantial questions of law with regard to the interpretation of Constitution of India are involved in these petitions. The petitioners had further requested for interim relief that till all these petitions are disposed off, it should be directed that the NJAC Act should not be brought into force and the present system with regard to the appointment of Judges should be continued. On April 07, 2015 the bench comprising of, Justice Dave. Justice Chelameshwar and Justice Lokur agreed to refer the matter before a larger bench. However, the court refused to grant the all important interim relief since it wasn’t deciding on any of the arguments that were made on the merits.

Subsequently, the matter was referred to a five-member bench. However, Justice Dave recused himself from the bench due to the conflict of interest that arises out of the fact that he is a member of the NJAC. The bench was subsequently led by the Justice Khehar.

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The present status of the case is that the Attorney General had prayed that the court must dispose of the issue while directing that the two earlier judgments rendered by this court in Supreme Court Advocates on Association on Record Association v. Union of India (1993) 4 SCC 441, and the Special Reference No.1 of 1998 Re: (1998) 7 SCC 739 need to be re-visited and their status and applicability needs to be decided first, as a preliminary issue before hearing the case on merits.

The court refused to grant the relief and stated that it would hear the case on merits and not refer the question of the aforementioned judgments to a higher bench as a preliminary issue.  However, the concern that arose in this situation was that due to both mechanisms being non-functional at the moment (The NJAC has been rendered non-functional due to CJI Dattu’s refusal to participate till the Supreme Court decides its validity), the vacancies that were created during the case would not be filled and that would be a cause of concern in the functioning of the entire system. In order to counter this situation, the Court has passed an interim order stating that appointment of Additional Judges in High Courts, already in office, shall be continued for a period of three months or till the date of their superannuation, whichever is earlier. The three month window has been given as it is expected that the court will decide the case in that period, the Court has decided that the matter will be heard through the vacation of the court and therefore, it has next been listed to be heard on June 08, 2015.

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While there have been various nuanced as well as impassioned arguments made on the merits of the case, nothing concrete has been determined by the Supreme Court with respect to the legality of the 99th amendment and the NJAC Act. From what has been reported, the government is clear in its stand that the erstwhile Article 124 is a relic of the time gone by and irrespective of the decisions on the amendment and the NJAC Act; the collegium system shall not be allowed to continue. Of course, there is not much foresight that can be gathered from the arguments that have taken place so far. While there have been concerns raised on the structure and the regime sought to be imposed by the NJAC Act, at present it is beyond the scope of my brief to attempt to analyse any of the substantive issues that arise from the petitions.

The aim of this article is to raise awareness about the case and implore the readership to follow the happenings of this case as it is one of those issues whose importance can only ever be understated. Almost all of us are obviously only witnesses in this event, but I do believe that it is essential that we are active witnesses and hopefully engaged students in this vital issue.

The matter is titled Supreme Court Advocates-on-record and Anr. v. Union of India, Writ Petition (Civil) 13/2015

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