Supreme Court Advocates on Record Association on Thursday moved the Supreme Court challenging the Constitution amendment and National Judicial Commission Bills providing for replacing the collegium system of appointment of Judges to High courts and Supreme Court.
The Association through its Secretary Vipin Nair has filed this petition, which has been settled by eminent lawyer Fali Nariman. The petition said at present “Article 124(2) along with Article 217(1) of the Constitution made provisions for the appointment of Judges of the Supreme Court including the Chief Justice of India and for appointment of Judges of the High Courts including the Chief Justices of the High Courts.”
It said the National Judicial Appointments Commission Bill was introduced even prior to the Constitution 121stAmendment Bill to give constitutional status to the proposed National Judicial Appointments Commission. The Bill was passed in both Houses of Parliament by a voice vote even at a time when the provisions of Article 124(2) as originally enacted were in force (and even today continue to be in force) making the introduction, consideration and passing of the National Judicial Appointments Commission Bill an exercise in futility and a nullity.
The petition contended that since with Article 124(2) as originally enacted in the Constitution remained intact, there could be no introduction of or passing by Parliament of the legislative Bill known as the NJAC Bill. It said that a constitutional amendment which was invalid for violation of the basic structure of the Constitution could not be forwarded to the State Governments for ratification.
It said “the NJAC Bill takes away the primacy of the collective opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court as even if all three senior most judges of the Supreme Court collectively recommend an appointee, the appointment is liable to be vetoed by the other three members - one of whom is part of the executive (Minister in government) and the other two “eminent persons”)”. The petitioner sought a declaration that the Bills were unconstitutional, null and void and a direction that the present collegium system evolved by a nine-judge Bench of the Supreme Court should continue with the appointment of judges to the higher judiciary.
