The Supreme Court Advocates-on-Record Association (SCAORA) on Monday filed a writ petition seeking a declaration that the Constitution 99th Amendment Act, 2014, providing constitutional status to the National Judicial Appointments Commission, is “invalid, void and unconstitutional”.
The association had, in August last year, challenged the NJAC law. But a Bench led by Justice Anil R. Dave had said it was too premature as the States were yet to ratify it. However, the Supreme Court had given the association liberty to approach it at a later stage.
The NJAC, which restores the political class’s role in the appointment of judges to the Supreme Court and the High Courts, received the President’s assent last week after ratification by 16 State legislatures. Both the Constitution Amendment Bill and the NJAC Bill were passed by Parliament in August 2014.
The petition, filed by SCAORA and its secretary and Supreme Court advocate Vipin Nair late on Monday evening, is settled by senior advocate Fali Nariman.
The petition contends that by passing the NJAC Bill, Parliament had “altered the basic structure of the Constitution” and encroached into judicial independence.
“Independence of the judiciary includes the necessity to eliminate political influence even at the stage of appointment of a judge,” the petition said.
It said the amendment, as passed by the two houses of Parliament, “takes away the primacy of the collective opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court of India”.
Although the six-member Commission had the CJI as chairperson and two seniormost Supreme Court judges as members, there was no “primacy” for them. Even their collective recommendation of a candidate as judge could be frozen if any two non-judicial members on the panel vetoed it.
The petition said the NJAC Act did not give any “suitability criteria” for appointment as judge, leaving it to the Commission to frame them. It sought a return to the recommendations of the 2002 Justice M.N. Venkatachaliah Committee in which the NJAC was composed of five members.
