SC Bench strikes down NJAC Act as ‘unconstitutional and void’

The collegium system remains operative

Prashant Bhushan, senior advocate and petitioner, briefing the media at the Supreme Court following the judgment. Photo: V. Sudershan

Declaring that the judiciary cannot risk being caught in a “web of indebtedness” towards the government, the Supreme Court on Friday rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.

“It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” Justice J.S. Khehar, the presiding judge on the five-judge Constitution Bench, explained in his individual judgment.

The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.” It held that the collegium system, as it existed before the NJAC, would again become “operative.”

But interestingly, the Bench admitted that all is not well even with the collegium system of “judges appointing judges”, and that the time is ripe to improve the 21-year-old system of judicial appointments.

“Help us improve and better the system. You see the mind is a wonderful instrument. The variance of opinions when different minds and interests meet or collide is wonderful,” Justice Khehar told the government, scheduling further debate for November 3 on bettering the working of the collegium system.

Every judge on the Bench, comprising Justices J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel, has written separate judgments explaining the debate, reasonings and individual conclusions they arrived at about the NJAC and the Constitutional Amendment.

The entire bulk of the series of judgments and orders run to about 1,000 pages.

NJAC verdict: Who said what?

Surprised by the verdict of the Supreme Court on NJAC. NJAC was completely supported by Rajya Sabha and Lok Sabha; it had 100 per cent support of the people: Law Minister D.V. Sadananda Gowda
It is a flawed judgment ignoring the unanimous will of the Parliament, half the State Legislatures and the will of the people for transparency in judicial appointments: Attorney General Mukul Rohatgi
Historic day for democracy. Law officers should resign: Ram Jethmalani
Ill-conceived legislation by the NDA govt. Arun Jaitley has to concentrate more on his ministry than other ones: Kapil Sibal
The SC is giving a message that the power is with them: Senior advocate Harish Salve
I am disappointed. As someone in the parliament said this is the tyranny of the unelected over the elected: KTS Tulsi
Good sign that the SC has called for further discussions on Collegium system. It shows that it has accepted there are defects in the system. That there is opacity. Second, it has stopped the interference of the executive. It has stood by the basic principle. It is the most remarkable judgment after Keshavananda Bharti: Senior Advocate Gopal Subramanium

Batting for an independent judiciary

• Post-script: With this verdict, the Collegium system as it existed before the NJAC Act was passed, will become operative again.
• Faultiness: The SC Bench admitted that not everything was okay with the Collegium system of "judges appointing judges", and it was time to improve upon the 21-year-old-system of judicial appointments.
• What the Amendment was about: After receiving Presidential assent on Dec. 31, 2014, the collegium system of appointing judges to the SC and high courts was replaced by a new body called the National Judicial Appointments Commission.

How the selection process works in various jurisdiction

	Since 1993, a collegium, consisting of the Chief Justice of India and other senior SC judges, make recommendation for persons to be appointed as SC and HC judges, to the President.
It consists of the SC President, his deputy and one member each appointed by the JACs of England Scotland and Northern Ireland. The JACs comprise lay persons, members of judiciary and the Bar.
	Justices are nominated by the President and confirmed by the US Senate. Senate Judiciary Committee holds hearings and votes on whether nominations should go to the full Senate.
It is unique as the country has an election process to appoint judges.Half the member of Federal Constitutional Court are elected by the executive and half by the legislature.
	The South African Judicial Services Commission recommends the list of candidates to be appointecd as Supreme Court judges. All other judges are appointed on its advice.