Three petitions seeking quashing of the new law on appointment of judges were moved in the Supreme Court on Monday, saying the proposed National Judicial Appointments Commission was “unconstitutional and violative” of the basic structure of the Constitution. The petitions were filed barely a few days after the NDA government procured a ratification from the President of the Constitution Amendment Bill. The NJAC Act scraps the collegium system of appointing judges and gives the Executive a say in matters of appointments, transfer and posting of the judges of higher judiciary. The petitions were moved separately by the Advocates on Record Association and senior advocates Bishwajit Bhattacharyya and Bhim Singh against the constitutional validity of the NJAC. The AoR Association’s petition, drafted by advocate Subhash Sharma and settled by senior lawyer Fali S Nariman, pointed that the NJAC Act laid down framing of regulations for appointment of judges after due approval by both the Houses of Parliament. The petition said that this power could not be delegated to Parliament in the wake of the constitutional provisions that specifically envisaged how judges were to be selected and appointed. “It is also submitted that the ‘primacy’ of the opinion of Chief Justice of India is sought to be done away with by passing the NJAC Act of 2014, by giving veto powers to any two members of the NJAC (being either the eminent person or the law minister), thereby overruling the recommendation of the Chief Justice of India and other two senior-most Judges of the Supreme Court,” stated the petition. It added that a nine-judge bench had already declared that independence of judiciary was a facet of the basic structure of the Constitution and that Parliament could not hence amend it. Bhattacharyya’s petition described the NJAC as a “severe attack” on the institution of the Chief Justice of India, who will be vetoed out by an overpowering Executive in matters of making appointments. The NJAC Act and the Constitution (99th Amendment) Act are ultra vires of the basic structure of the Constitution, as various clauses stipulated therein make a frontal attack on the independence of the Judiciary and on the doctrine of separation of powers, as per the petitions by Bhattacharay and Singh.
