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#NJAC Unconstitutional ; Constitution Bench [4;1] [Read Judgment] [Updated]

The Constitution Bench of the Supreme Court  declared National Judicial Commission (NJAC) Unconstitutional as it violates Basic Structure of Constitution of India by 4;1 Majority. Justices J S Khehar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel  declared the 99th Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it.

Here is the Conclusions of the Majority Judgment as narrated by Justice Kehar in PARA- 254-256 of the Judgment

“Article 124A constitutes the edifice of the Constitution (99th Amendment) Act, 2014. The striking down of Article 124A would automatically lead to the undoing of the amendments made to Articles 124, 124B, 124C, 127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, that the latter Articles are sustainable only if Article 124A is upheld. Article 124A(1) provides for the constitution and the composition of the National Judicial Appointments Commission (NJAC). Its perusal reveals, that it is composed of the following: (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of Supreme Court, next to the Chief Justice of India – Members, ex officio; (c) the Union Minister in charge of Law and Justice – Member, ex officio; (d) two eminent persons, to be nominated – Members. If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety. While adjudicating upon the merits of the submissions advanced at the hands of the learned counsel for the rival parties, I have arrived at the conclusion, that clauses (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges, from one High Court to another). The same are accordingly, violative of the principle of “independence of the judiciary”. I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon the principles of “independence of the judiciary”, as well as, “separation of powers”. It has also been concluded by me, that clause (d) of Article 124A(1) which provides for the inclusion of two “eminent persons” as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the “basic structure” of the Constitution. In the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby struck down in its entirety, as being ultra vires the provisions of the Constitution.

 The contention advanced at the hands of the respondents, to the effect, that the provisions of the Constitution which were sought to be amended by the impugned constitutional amendment, would not revive, even if the challenge raised by the petitioners was accepted (and the Constitution (99th Amendment) Act, 2014, was set aside), has been considered under a separate head, to the minutest detail, in terms of the submissions advanced. I have concluded, that with the setting aside of the impugned Constitution (99th Amendment) Act, 2014, the provisions of the Constitution sought to be amended thereby, would automatically revive, and the status quo ante would stand restored.

 The National Judicial Appointments Commission Act, 2014 inter alia emanates from Article 124C. It has no independent existence in the absence of the NJAC, constituted under Article 124A(1). Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 is also liable to be set aside, the same is accordingly hereby struck down. In view of the above, it was not essential for us, to have examined the constitutional vires of individual provisions of the NJAC Act. I have all the same, examined the challenge raised to Sections 5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8 of the NJAC Act are ultra vires the provisions of the Constitution”.

In April 7, a three-judge bench of the apex court had referred the matter to a five-judge Constitution Bench, the batch of petitions challenging the validity of NJAC Act to replace the two-decade-old Collegium System. Under the old Collegium System, five top judges of the apex court used to recommend the transfer and elevation of judges to the Supreme Court and the 24 High Courts. The NJAC was signed into an Act by President Pranab Mukherjee on December 31, 2014. According to the new act, two eminent persons will be nominated to the NJAC as members by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in Lok Sabha or the leader of single largest Opposition party. The eminent persons will be nominated for a period of three years and will not be eligible for re-nomination.

Read the Judgment here.

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  • Adv.Dr. A. Ebenezer says:

    How an unconstitutional body collegium is appointing the constitutional authorities of Supreme Court and High Courts Judges of India? What step has been taken by the BJP Government to setaside the verdicts of Supreme Court full Bench through the subsequent Sessions of Indian Parliament?

  • Dharmender Sharma says:

    Sureme Court is supreme and should remain supreme.

  • Beant Singh Bedi says:

    Such a momentous question ought to have been referred to an 11-judges bench .

  • Adv. Godbole says:

    The judgment must have considered the state of affairs in Judiciary which Justice Mishra had quoted
    Justice G.S.Mishra) made strong remarks against the High Court through his Judgment in Raja Khan vs U.P.Sunni Central Wakf Board & Anr he said
    “Something is rotten in the State of Denmark”, said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court, as this case illustrates”
    “We are sorry to say but a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity. Some Judges have their kith and kin practising in the same Court, and within a few years of starting practice the sons or relations of the Judge become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of Judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyer.
    We do not mean to say that all lawyers who have close relations as Judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account. However, others are shamelessly taking advantage of this relationship. There are other serious complaints also against some Judges of the High Court.
    The Allahabad High Court really needs some house cleaning (both Allahabad and Lucknow Bench), and we request Hon’ble the Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles”.
    Justice Katju was appointed as a Judge in Allahabad High Court in 1991. He was appointed as acting Chief Justice of Allahabad High Court in August 2004

    If this is seen, there should have been some different verdict.

  • Muhammed Noufal.s says:

    Legislation, Exicutives and Judiciary. This three parts are independent.But before one year the Shri. Modi Govt try to overtaking our judicial system. This judgement to proved ,the Judiciary was independent.

  • P.S.Subba Raman, Advocate, Tuticorin says:

    The Judgement proves that the Supreme Court Judges are part of the collegium selection.Judges appointing Judges is not found in the Constitution.Once again the Parliament has to legislate .

  • rocks says:

    WOW IT SHOWS HOW JUDICIARY PROTECTS ITS OWN INTEREST AS NJAC was to make their appointment absolute transparent. Judiciary says all MP and state govt are fools and they only have intelligence. LOL

  • Ram says:

    Thank God. For now India is saved from these dirty politicians. BJP was trying to poke into everything and get a Dictatorship kind of rule. Very cunning. At least Congress used to do pick pocketing and get caught quick. Now BJP is first trying to kill Judiciary and then no one is there to catch it. Narendra Modi is the worst person in this world. I am writing this wholeheartedly.

  • chandrashekar gowda. says:

    Yessss….its necessary for the people of india, our apex court clearly dealers to our administrators, that not to interfere to judiciary. really i am happy for this judgement.

    • Anupam says:

      Have you ever wondered why so many cases linger in Judiciary yet nothing has changed in so many decades? Or why is it that nothing – absolutely nothing – has changed in judiciary after independence of India? Judiciary is a relic of British rule and it remains as it is because it allowed Congress to do every illegal thing in this country and Congress let it remain ‘independent’. It is anything but independent and this is known to anyone who has read any part of history of landmark judgements.

      BJP hatred is its place but having one law minister in NJAC was not taking away ‘independence’ of 3 judges. It just allows one law minister to see what 3 judges are doing and then complain about it in media. This much needed transparency is poisonous to judiciary which enjoys draconian contempt of court laws (also a relic of British Raj and which doesn’t exist anywhere in this world not even in Britain anymore). Half of the judges are children of big lawyers and half of the lawyers are children of retired judges.

      In this corrupt system lack of #NJAC is another failed attempt to fix it.

      The only solution is non-cooperation – complete disregard of judiciary and taking every matter in the hands of panchayat.

    • rocks says:

      Wow this Collegium System was not in original constitution and well beyond doubts that it favoured many boot licker. There has been complete curtain in present system of selection which was tried to be made more transparent.
      Also this judgement accepts that are short comings in present Collegium System.

  • Ashwani kumar singh says:

    Well, I think what Supreme Court has done is good… NJAC is not well-enough to overrule the Collegium Syste, because doing so will weaken the judiciary.