In what is expected to be a historic ruling to decide on the process for appointing judges in the higher judiciary, a five-judge Constitution Bench of the Supreme Court will on Friday rule upon the validity of the National Judicial Appointments Commission (NJAC) to replace the Collegium system.
Apart from the merits of NJAC, the Bench will also give its findings on referring the issue to a larger bench and the question of recusal of judges who may become ex-officio members of the NJAC in future.
The Bench, comprising Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel, will deliver its verdict on a plea by a batch of petitioners who have described the NJAC as a threat to the independence of the judiciary and an act of overreach by the executive.
By a constitutional amendment made through an Act passed by both houses of parliament in August 2014, the Government prescribed that judges shall be appointed by a six-member NJAC, headed by the Chief Justice of India and including two senior-most SC judges, the Union Law Minister and two ‘eminent’ persons.
Under the NJAC, appointments cannot be made simply by a majority and no proposal can go through if any two members object. Further, the Act does not require the two ‘eminent’ persons to be from the field of law or have any specific eligibility, except that they have to be nominated by a panel comprising the Prime Minister, the CJI and leader of the single largest opposition party in Lok Sabha.
While the Act was accorded Presidential assent on the last day of 2014 and the NJAC was notified in April this year, the new system has remained a non-starter with the CJI’s refusal to join the proceeding in view of the pendency of the case. There are three vacancies in the Supreme Court and 392 at high courts — these appointments are stuck owing to the NJAC row. No new appointments have been made in the top court or high courts in the last six months.
A batch of petitions, led by the Supreme Court Advocates on Record Association, have claimed that NJAC tinkers with the independence of the judiciary and that many of its provisions were unconstitutional. They want the Collegium system revived with certain additional safeguards to ensure more transparency.
Countering these arguments, the Centre has contended that the Collegium is now “dead and buried forever” and said NJAC represented the “will of the people” who wanted a new system that is not opaque, has certain yardsticks for appointments and is open to scrutiny.
Attorney General Mukul Rohatgi claimed that the Collegium was an “illegal system” and that it made some “bad appointments” of people with “doubtful integrity.” He had added that Constitution never envisaged primacy of the CJI in appointing judges and that the Supreme Court wrongly assumed this power.
However, towards the final leg of arguments, the AG told the Bench that the Government was willing to incorporate certain changes in the NJAC if it fails to pass the muster of constitutionality in the opinion of the five judges.
On Friday, the court will have the option of either striking down the pertinent constitutional amendment and the NJAC or to uphold it in entirely, or alternatively “read down” some provisions subject to the Bench’s interpretation.