Another Writ Petition has been filed challenging the validity of Constitution 99th Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014, in the Supreme Court by Centre for Public Interest Litigation. The Petition has alleged violation of the basic structure of the Constitution of India and has urged for enforcement of Fundamental Rights under Article 14 and 21 of the Constitution.
The Petition alleges that “the political executive was not interested in creating an independent full time body as exists in United Kingdom (UK) to select judicial appointees and has created an ex-officio body called NJAC vide the Constitutional amendment of 2014. Thus, the NJAC is conceived as an ex-officio body of people who would have little time to devote to appointments and does not lay down any standards of transparency in the appointments.”
Asserting that judicial integrity, judicial independence and judicial review are a part of the basic structure of the Constitution, the Petition states, “Before making a selection, the candidates have to be evaluated for their competence, integrity, judicial temperament and their sensitivity for the concerns of common persons. The same cannot be done by an ex-officio body. An ex-officio body of sitting judges and ministers cannot devote the kind of time required for this task. Therefore, the said Amendment does not create a body that can fulfill the onerous task of appointing Supreme Court and High Court judges by finding out the best available talent. The Amendment does not ensure judicial integrity and thus violates the Basic Structure of the Constitution.”
According to CPIL’s petition, the country hence needs a broad-based independent constitutional body that would make appointments of judges in a transparent manner by calling for applications and nominations of candidates and evaluating them on set criteria.
Another allegation of the petitioner is that the impugned Act does not lay down any standard of transparency, which is a sine qua non for appointments to high offices as held by this Hon’ble Court in various judgments. It further does not lay down any objective criteria for the selection of Judges.
It therefore prays for a direction to the Government to set up a “broad-based full-time body for the selection of the judges”.
The Petition discusses the three Judges Cases, which had established the Collegium system of appointment of Judges. The issue of the manner of appointment of judges was first raised in S.P. Gupta’s case [1981 (Supp) SCC 87], wherein the majority held that primacy in judicial appointments was with the government and it could disregard the opinion of the Chief Justice in the matter of appointments and transfers of judges and Chief Justices.
The view in S.P. Gupta’s case was reversed by an innovative judgement in the Supreme Court Advocate on Record Association case [1993(4) SCC 441], which wrested the control in the matter of judicial appointments from the executive and vested it with the judiciary. The words “in consultation with the Chief Justice” were interpreted to mean, “with the consent of the Chief Justice”. The meaning of Chief Justice was interpreted as, a collegium of Chief Justice plus 3 senior judges of the Court. In fact, a new elaborate procedure was laid out by the court for appointment of judges, in which the role of the government was reduced to returning a name recommended by the collegium for reconsideration. If the collegium reiterated its recommendation, the President would have no option but to go through with the appointment. High Court appointments would also go through a similar procedure, except that the recommendations there would originate from the collegium of the High Courts.
In 1998, the Supreme Court further tweaked its judgement of 1993 in a Presidential Reference on this issue [(1998) 7 SCC 739]. The collegium was widened to 5 judges. Consultation with other judges in the court who came from the same High Court as the proposed nominee was also provided. But the control over the appointments continued to vest with the Judiciary.
The Petition accepts the faults that have been created in the system due to the procedure adopted through these three judgments, saying, “The quality of appointments did not substantially improve even in this system. The appointments of Justice Soumitra Sen and Justice P.D. Dinakaran, who had to resign facing impeachment, were also products of this judiciary driven system of appointments. All this led to the political establishment seeking a greater say in judicial appointments. There were also serious voices like that of Late Justice Krishna Iyer who called this an incestuous system and a snatching of appointments by abuse of judicial power. Even Late Justice J.S. Verma, the author of the original 1993 judgment came to say that he did not anticipate that his judgment would lead to such poor appointments by the judiciary.”
CPIL’s founder President was the late Shri V.M. Tarkunde and its Executive Committee consists of several Senior Advocates including Mr. Fali S. Nariman, Mr. Shanti Bhushan, Mr. Anil Divan, Mr. Rajinder Sachar, and Mr. Colin Gonsalves among others.
Fresh petitions were filed in the Supreme Court last month, challenging the National Judicial Appointments Commission, by the Supreme Court Advocates on Record Association, Senior Advocate Bhim Singh and Senior Advocate Bishwajit Bhattacharya. Read the LiveLaw story here.
A Petition was also filed in the Kerala High Court by Adv. Baisil Attipetty, on the ground that it is violative of Article 50 of the Constitution of India. Read the Petition and LiveLaw story here.
You may read more news about the NJAC here.
Read the Writ Petition here.