August 22, 2014 4:34:50 am
Decades after getting the landmark judgment in 1993 on independence of judiciary and primacy of the Chief Justice of India in judges’ appointments, the Supreme Court Advocates-on-Record (AoR) Association is back in the courtroom with another petition on the subject.
This time they have challenged the constitutionality of the NDA government’s proposed law on judicial appointments, which the Supreme Court is likely to hear along with a batch of four other similar petitions on Monday.
The petition, settled by eminent jurist Fali S Nariman, has requested the Supreme Court to quash the 121st constitutional amendment by which collegium system for appointment of judges was scrapped and a new mechanism under National Judicial Appointment Commission (NJAC) was proposed to be put in place.
Drafted by advocate Subhash Sharma, the petition claims that the amendment bill, as passed by both the Houses of Parliament, “severely affects and damages the basic structure of the Constitution viz the independence of the judiciary” and accord “unbridled power” to Parliament.
Questioning the composition of six-member NJAC, the plea cited the provision in the NJAC Bill, which provides that “the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation”.
The petition contended it takes away the primacy of the collective opinion of the CJI and the two senior-most judges of the Supreme Court since even if all three collectively recommend an appointee, the appointment is liable to be vetoed by the other three members. The other three members will be the Law Minister and two “eminent persons” who, the petition said, are not selected unanimously but by a panel comprising the PM, CJI and leader of the largest Opposition party in Lok Sabha.
Asking the court to restrain the Centre from seeking ratification by Legislatures of the states, the petition said there is an “unwarranted nullification” of the Constitution Bench judgment delivered in the SC AoR Association (Second Judges) case, whereby the nine-judge bench declared that the primacy of appointment had to be with the CJI. The AoR Association stated that such nullification is not possible even by a Constitutional amendment.
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