SC declares NJAC unconstitutional, upholds Collegium

[TejasMk3]

Supreme Court verdict on NJAC and Collegium system - The Hindu

In a collective order, the Supreme Court has struck down on the National Judicial Appointments Commission (NJAC) law meant to replace the two-decade old collegium system of judges appointing judges in higher judiciary. A Bench of five judges of the SC held the 99th Constitutional Amendment Act and the NJAC Act 2014 "unconstitutional and void".

The Supreme Court also held that the Collegium system as it existed before the NJAC 'operative'. The five-judge Bench listed the petitions on November 3 to invite suggestions to improve the working of the existing Collegium system. "Help us decide for a better system of judicial appointments," Justice J.S. Khehar told the Centre and the petitioners. The Bench said that the judgment was the "collective view of the court".

The Bench struck down on the government's arguments that the question of validity of the NJAC and the 99th Constitutional Amendment should be referred to a larger Bench in light of the two 'Judges Cases' of 1993 and 1998.

Though a "collective order", Justice J. Chelameswar said he has "upheld" the constitutionality of the 99th Constitutional Amendment Act but recused himself from passing any judgment on the NJAC statute as the majority of four had already held it unconstitutional.

"The SC is giving a message that the power is with them," senior advocate Harish Salve said on the apex court scheduling a hearing on November 3 to "improve" the Collegium system.

The NJAC Act was meant to replace the two-decade old collegium system of judges appointing judges in higher judiciary. The SC rejected the plea of Centre that the petition challenging NJAC Act be referred to a larger Bench.

The NJAC was a body created to end the two-decade-old Supreme Court Collegium system of judges appointing judges to the highest courts in the land.

A five-judge bench - J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel - had reserved its judgement on July 15 on the issue of validity of the 99th Constitutional amendment and the NJAC Act.

The parliament had unanimously voted in favour of the NJAC law and the Constitutional Amendment. The latter was then ratified by 20 State Assemblies and had received the Presidential assent.

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 Law Minister.


A lot of opinions flooding social media, some people even calling this a constitutional crisis.

 

[Infinity]

JUDICIARY of the country should be independent..........................

 

[Guynextdoor2]

AWESOME judgement. LIke all things the BJP tried to get it's people (Illiterate HRD minister, Ganjendra Chauhan etc,) to interfere in judicial selection by acting as 'eminent persons' in the selection panel. SC has basically asked them to screw themselves.

 

[Infinity]

i wanted to know one thing.... can SC strke down a bill passesd by parliament....?? i mean as far as i read if a bill is passed by 2/3rd majority in both houses it becomes law and is bound on SC too!!!

No the this bill was passed almost unanimously by Parliament and by almost 20 state legislative assemblies.
I am not a legal expert but Supreme Court can strike down a bill passed by Parliament or State legislative assembly provided its against Constitution or fundamental rights.....................Here the SC could have felt this as a move by Legislative to interfere in Judiciary ........................

 

[JanjaWeed]

i wanted to know one thing.... can SC strke down a bill passesd by parliament....?? i mean as far as i read if a bill is passed by 2/3rd majority in both houses it becomes law and is bound on SC too!!!

well.. that's what they have done here. They interpreted this amendment as altering basic structure of the constitution, which as per Indian constitution not allowed by any sort of legislation! So.. basically it's to do with the interpretation.. & judges have the advantage in that regard as it's their job to interpret the law!

 

[dadeechi]

First the judgment on Article 370 and now this. Judiciary is trying to usurp the power of the Legislative Branch (representatives of the citizens).

 

[Bombermanx1]

i wanted to know one thing.... can SC strke down a bill passesd by parliament....?? i mean as far as i read if a bill is passed by 2/3rd majority in both houses it becomes law and is bound on SC too!!!

No they cannot. Remember how Rajiv Gandhi Bulldozed SC judgement in Shah Bano case and upheld his own rule by majority.Same will happen here.SC is running scared because they cannot appoint the judges and their chelas on their whims.Ultimately the Parliament will trump SC, since people didn't vote for Supreme Court, they voted for Parliament.
"Vox populi, Vox dei" Parliament is the voice of the people.SC also removed the Jury system after Admiral Mehta case, and they are continuing with Single judge system.

 

[TejasMk3]

Hmmm....comment by the supreme court:

 

[dadeechi]

The main point of opposition that Judiciary has with NJAC is the right to Veto by having people on the NJAC panel who are pliant to the Executive and Legislative branches thereby influencing the selection. There is also an argument being made that most of recent high profile corruption cases involved politicians and giving the power to them in the selection would result in conflict of Interest.

The above is a valid argument but if we allow Judges select Judges then

1) Politicians are answerable to the people and technically people have power to change? What are the checks and balances ?
2) What if a judge himself is involved in case? What about the conflicts of interests in such cases?

 

[TejasMk3]

Scrapping collegium was right decision: Justice Chelameswar - The Times of India

In a lone yet strong judgement of dissent against the 'judges-selecting-judges' collegium system, justice J Chelameswar said appointment of judges should not remain the exclusive domain of judiciary and the government and members of civil society must have a say in it.

Faulting the functioning of the collegium system, he said while it had no accountability, there were instances where it failed too. He said there was an urgent need for comprehensive reform in the present system and lamented that the Supreme Court did not approve NJAC, which was a step in that direction.

"The nation has witnessed many unpleasant events connected with judicial appointments - events which lend credence to the speculation that the system established by the second and third judges cases in its operational reality is perhaps not the best system for securing an independent and efficient judiciary," he said.

Terming the collegium system as non-transparent, he said, the correspondence between the government and the CJI, and the record of the consultation process are some of the best guarded secrets of this country.

"Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks," he said.

"The records are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become CJI. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country," Justice Chelameswar said

The judge said the judiciary cannot claim to be sole protector of people's right and referred to instances where the Supreme Court failed to live up to citizens' expectation in preserving their liberties. He said "in difficult times when political branches cannot be counted upon, neither can the judiciary".

"To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved... To wholly eliminate the executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people," he said.

He said that fiasco created by collegium in appointment of Dinakaran in SC and appointment of a HC judge in Madras HC are part of judicial records but there are many other cases when undeserving people were appointed judges.

"A few more instances were mentioned at the bar during the course of hearing to demonstrate not only the shallowness of the theory but also the recommendations by the Collegium have not necessarily always been in the best interests of the institution and the nation. It is not really necessary to place on record all the details but it is sufficient to mention that the earlier mentioned two cases are not certainly the only examples of the inappropriate exercise of the power of the collegium," he siad.

"The fiasco created in Dinakaran case and Shanti Bhushan case would justify the participation of the members of the civil society in the process to eliminate from the selection process the maladies involved in the process. The abovementioned two are not the only cases where the system failed," it said.

"I only part with this case recollecting the words of Macaulay - reform that you may preserve. Future alone can tell whether I am rightly reminded of those words or not," he said while concluding his judgement.