SC rejects new NJAC system for appointing judges

In a landmark judgment that deals a blow to the government's attempt to detrmine the appointment of judges, the Supreme Court today declared as unconstitutional the law brought by the National Democratic Alliance government seeking to change the over two-decade-old collegium system of appointing judges in the higher judiciary.

The apex court quashed the National Judicial Appointments Commission (NJAC) Act in a unanimous verdict, and also declared as unconstitutional the 99th amendment to the Constitution to bring in the Act to replace the collegium system.

The 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. It also rejected the plea of the union 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 not upholding its validity.

Reacting to the Supreme Court's verdict, union law minister Sadanand Gowda said, "I am surprised by the verdict of the Supreme Court on NJAC. The will of the people had been brought to the court; I will consult senior colleagues and the Prime Minister and take a decision."

He further added, "NJAC was completely supported by the Rajya Sabha and the Lok Sabha; it had 100 per cent support of the people."

Telecom ninister Ravi Shankar Prasad said, "We will go through judgement and come up-with a structured response." He also said that it is very important to recall the circumstances in which the constitutional amendment came to be passed.

Congress leader RS Surjewala said, "Congress respects the judgement of the Supreme Court of India."

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 the transfer of judges from one high court to another was 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 appointing of judges, and posted the matter for hearing on 3 November.

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 15 July on a bunch of petitions 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.

The petitions challenging the new legislation were filed by the 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 judiciary.

However, the Centre had defended the new law saying that the 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 law minister.

Under the impugned law, two eminent persons were to be nominated by a committee consisting of the Chief Justice of India, the Prime Minister, and the leader of the opposition in the Lok Sabha or where there is no such LoP, the leader of single largest opposition party in the house.

Further, it envisaged that of the two eminent persons, one would be from the Scheduled Castes or Scheduled Tribes or Other Backward Classes, 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 the final day of hearing, the bench had differed with the Centre, saying inclusion of laymen in the new system of judicial appointments "cannot work".

Defending the 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.