The National Judicial Appointment Commission (NJAC) became a constitutional reality on Wednesday with the President ratifying the constitution amendment Bill. Now decks have been cleared for a fresh legal battle — with the NJAC facing criticism from various quarters as an attempt to tinker with the independence of the judiciary.
The Supreme Court Advocates-on-Record (AoR) Association and at least three apex court lawyers, who had individually filed writ petitions against the constitutional validity of the two Bills on the new law, plan to move the court soon after it reopens on January 5 after the winter break.
A bunch of five petitions by the AoR Association and these lawyers were disposed of by the court on August 25 after a bench held the challenge to be “pre-mature”. The bench, led by Justice Anil R Dave, had then refused to stall the parliamentary process to have a new law for replacing the collegium system with NJAC, and declined to admit the petitions at that juncture.
However, on being specifically requested by senior advocate Fali S Nariman, who represented the AoR Association, the court had noted in its order that “it would be open to the petitioners to approach this court at an appropriate stage and make all submissions on merits”.
Armed with an overt liberty to move the court again, the AoR Association, which had in 1993 secured the landmark judgment on independence of judiciary and primacy of the Chief Justice of India (CJI) in judges’ appointments, proposes to have a meeting of its office-bearers to chalk out its future strategy.
“We had been given a liberty to come back to the Supreme Court after the parliamentary process was over. The court had then observed that the principle of separation of powers required that it does not interfere with it at that point in time. As everything is now over, we can file a fresh petition, demanding to get the 121st constitutional amendment quashed,” said a member of the AoR Association.
Senior advocate Bishwajit Bhattacharya, who had challenged the NJAC through a separate petition, maintained that this must not be allowed to go unchallenged since the cure seemed to be worse than the disease. “I and several other lawyers feel strongly about upholding the independence of the judiciary and we would keep up the fight against any attempt to damage it,” he said.
Another petitioner, advocate R K Kapoor, said he would move a fresh petition as early as possible since the NJAC is a severe threat to the basic structure of the Constitution that envisages judiciary’s independence as being non-negotiable.
Advocate Manohar Lal Sharma, who had opted to challenge the validity of the parliamentary process itself, said he would approach the court on Monday to revive his petition. He said his petition had contended that without amending the Constitution, passage of the NJAC Bill was illegal and unconstitutional but Parliament passed both the NJAC Bill and the Amendment Bill one after one another. According to him, President’s assent to the Amendment Bill was a pre-requisite of passing the second Bill.