Over four months after the President granted assent to the two Bills, the NDA Government on Monday finally notified the Ninety-Ninth Constitutional (Amendment) Act and the National Judicial Appointments Commission Act, thus ending the over two-decade-old collegium system of appointing judges of Supreme Court and high courts.
The notification bringing the provisions of the new law into force was issued by Justice Secretary Kusumjit Sidhu. Sources said the government consulted Attorney General Mukul Rohatgi before issuing the notification.
Under the new law, a six-member panel – National Judicial Appointments Commission (NJAC) – headed by the Chief Justice of India and which will include two senior-most Supreme Court judges, Union Minister of Law and Justice and two “eminent persons” nominated by a committee comprising the Prime Minister, CJI and Leader of Opposition in the Lok Sabha or leader of the largest opposition party in the Lok Sabha will select judges of the apex court and state high courts.
Since the NJAC can’t technically function without the selection of the two “eminent persons, it is learnt that the government has decided to soon approach the Chief Justice and other members of the selection panel to initiate the process.
The Constitutionality of the NJAC is already the subject matter of a bunch of petitions which will be taken up for hearing by a Constitution Bench of the SC on April 15. On April 7, a three-Judge Bench referred all issues relating to the Constitutionality of the Ninety-Ninth Constitutional (Amendment) Act, 2015, and setting up of the NJAC to a larger bench.
The petitions have said that the NJAC Act was illegal since it was passed without first amending the Constitution. The Parliament had passed both the amendment and the Act simultaneously and the petitions said this amounted to invalidating the entire parliamentary process. They further claimed that it would tinker with the independence of the judiciary and the collective opinion of the three judges in the NJAC could anytime be vetoed out by any two other members under the proposed law.
While the Supreme Court Advocate-on-Record Association, NGO Change India, Centre for Public Interest Litigation (CPIL), Bar Association of India and others had moved the court challenging the NJAC route of appointment, the Supreme Court Bar Association had come out in the favour of the new system.
When contacted, advocate Prashant Bhushan, counsel for CPIL, said he would not seek a stay on the two Acts at the hearing before the larger Bench on Wednesday.
“There is no need to press for a stay since making NJAC operational is going to be a cumbersome process. Rules will have to be framed, jurists will have to be selected and then the NJAC will come to existence as a body. Therefore, I will not be pressing for a stay since I am hopeful the Supreme Court will decide the matter expeditiously once it starts hearing it Wednesday,” Bhushan said.
However, senior advocate Bishwajeet Bhattacharya, who is one of the petitioners in the case, said, “I will plead the Constitution Bench to stay the operation of the notification. It is in the interest of both the parties that the notification is stayed till the time the court rules on its validity. If the court ratifies the government’s move after hearing both the parties, the notification can always be revived but if the NJAC is held to be bad in law, the notification is automatically doomed forever. I cannot fathom the haste in issuing the notification two days before the court starts hearing the clutch of petitions challenging its validity.”