| Setting the stage for a stiff judiciary vs executive confrontation, the Supreme Court on Friday struck down a new law brought in by the Narendra Modi government which had given it a major role, including veto powers, in matters relating to appointment and transfer of apex court and high court judges.
The six-member National Judicial Appointments Commission - led by chief justice and with two senior-most SC judges, law minister and two "eminent persons" nominated by a committee comprising PM, CJI and Leader of Opposition in the Lok Sabha or leader of the largest Opposition party in LS - was to replace the two-decade old collegium system in which the chief justice and four senior-most judges appointed judges.
The government had argued that there was lack of transparency in the old system and many undeserving, inefficient and corrupt judges made their way up. "Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void, the National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void and the system as existing prior to the amendment is declared to be operative", the bench ruled on Friday.
But significantly the message which the 1,042 page 4: 1 judgment (Justice J Chelameswar dissented and upheld the validity of the constitutional amendment to set up NJAC and wanted collegium system to go) sent out was - 'let the collegium system riddled with deficiency continue but we will not allow the government to interfere in the judges' appointments process'.
All five judges in the constitution bench - Justices JS Khehar, J Chelameswar, AK Goel, Madan B Lokur and Kurian Joseph in separate judgments agreed that the collegium system needed to be more transparent and required improvements. It will be inviting suggestions in this regard on November 3.
Terming NJAC an affront on independence of judiciary, violative of basic structure of the Constitution, in breach of principle of separation of powers and not guaranteeing primacy to the judiciary in appointment of judges, they said even the existing collegium system had faults.
Wrote Justice Kurian: "the collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the collegium system, as sometimes observed by the civic society". As Justice Goel said "the executive was at liberty to give suggestions prior to initiation of proposal and to give feedback on character and antecedents of the candidates proposed and object to the appointment", Justice Kurian echoed the view and said "the active silence of the Executive in not preventing such unworthy appointments was actually one of the major problems. The Second and Third Judges Case (which gave birth to collegium system) had provided effective tools in the hands of the Executive to prevent such aberrations".
Justice Lokur was of the view that the collegium system needed "fine tuning". Justice Chelameswar who dissented said proceedings of "the collegium were absolutely opaque and inaccessible to the people at large and transparency is a vital factor in constitutional governance".
The court was pronouncing judgment in petitions filed by Supreme Court Advocate-on-Record Association, NGO Change India, Centre for Public Interest Litigation (CPIL) and Bar Association of India that had challenged the constitutional validity of the new law.
The government was immediately on the warpath with Union minister Ravi Shankar Prasad saying that the verdict dealt a blow to "parliamentary sovereignty" as what the SC had scrapped was a law unanimously passed by Parliament and one which was ratified by 20 state assemblies.
"The SC seeking to improve collegium system is in itself an admission that this system is not good. It is a flawed judgment which ignored the will of the people, Parliament and half the state legislatures: Government and Parliament will decide on making a new law," Attorney General Mukul Rohatgi who had vociferously argued for NJAC said after the verdict.
The anti-NJAC petitioners had argued that it would tinker with independence of judiciary and collective opinion of the three judges in the NJAC could any time be vetoed out by any two other members. Citing the SC ruling in the historic Keshavananda Bharati (1973) case that outlined the basic structure doctrine of the Constitution, they said the judgment which enshrined separation of powers cannot be altered with through any amendment by Parliament. |