The Supreme Court has been moved contending that the National Judicial Appointments Commission (NJAC) and the Constitution Amendment Bills replacing the collegium system of appointment of judges violated the basic structure of the Constitution and should be struck down as unconstitutional.
Former Additional Solicitor General Bishwajit Bhattacharya in his public interest writ petition said it was manifest that the two bills of 2014 were ultra vires the basis structure of the Constitution as the Doctrine of separation of power and the independence of the judiciary were basic immutable features of India’s Constitution.
The petitioner pointed out that the NJAC would recommend for appointment the senior-most Judge of the Supreme Court as the Chief Justice of India “if he is considered fit” to hold office. He said “the words “considered fit’ opens up the possibility of superseding the senior-most Judge of the Supreme Court and preventing him/her from becoming the next Chief Justice of India. This would severely compromise with the independence of the judiciary. All that is required for any two members (of the 6) of the NJAC, even two non judge members, is to say no (declare the senior most Judge of the Supreme Court ‘unfit’) and the senior most Judge of the Supreme Court would stand superseded. That would draw a curtain on India’s democracy.”
He said “the design of the executive and the legislature is writ large: to switch back to the days of supersession of former Justices Shelat, Grover and Hegde. A combined reading of Articles 124, 127, 128, 217, and 222 reflects that it is the Chief Justice of India who ensures the independence of the Judiciary by being completely involved in every appointment of Supreme Court Judges and High court Judges and in every transfer of Judges from one High Court to another. This power is now being shifted to the NJAC and the very possibility of the CJI along with two senior-most Judges of SC being vetoed by the executive would be destructive of the independence of the Judiciary and the doctrine of separation of power, both basic features of India’s Constitution.”
