In a newly provoked battle between the Centre and the Supreme Court, the latter has struck down a new law that replaced the opaque collegium system with a panel that gave the executive a say in judicial appointments. Challenging the constitutional validity of the National Judicial Appointments Commission, the verdict on the 99th amendment of the Constitution and the NJAC Act, 2014 was pronounced by a bench of Justice Jagdish Singh Kehar, Justice Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Gohel. “Some of you had suggested making it more transparent, we have decided to hear the matter further,” Justice Kehar told the jurists present in the packed courtroom. Justices Chemaleswar and Joseph criticised the collegium system, but expressed distaste at the way the government wanted to change the procedure. All the five judges wrote separate judgments that ran into 1,030 pages.
The SC disapproved the presence of the law minister in the panel, pointing out that a judge appointed with his support may not be able to resist a plea of conflict of interest by a litigant in a case when the executive has an adversarial role. The court said that, “The sensitivity of selecting judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of judges to the higher judiciary, make wrongful selections, it may well lead the nation into a chaos of sorts.”
The quashing of the government's role in the appointment of judges to the higher judiciary came as a surprise to the Centre. Union Law Minister Sadananda Gowda said, “We brought the will of the people. Hundred per cent of the Rajya Sabha and Lok Sabha have supported the bill. Voters are represented by Parliament members. Twenty state legislatures have supported that bill.” The Aam Aadmi Party welcomed the decision of the judges, saying it was a “great blow” to the NDA government which had brought the law. “SC judgment on NJAC is historic. The judgment is a great blow to the central government that is trying to make judiciary committed to itself. This government made CJI as governor. That was brazen,” AAP Spokesperson Ashutosh tweeted.
Congress spokesperson R S Surjewala said the Congress respected the judgment. “Independence of the judiciary is a key factor in our democracy and there can never be a compromise with that.” The party's stand on the verdict comes in sharp contrast to its vote in favour of the bill in the Parliament.
Finance minister Arun Jaitley took on the Supreme Court for striking down the NJAC, saying the judiciary could not arrogate unto itself the role of being a parallel legislature. In a blog post, Jaitley said the verdict raised several issues in his mind, particularly the fact that “politician bashing seems to be the key ingredient of the judgment” and this ignored the “basic structure of the Constitution” where parliamentary democracy was central and where the will of the people (as represented by elected representatives) was sovereign. He said the judgment was based on the premise that the independence of judiciary would be compromised because of the presence of politicians on the judges appointment commission, that judges thus appointed would feel indebted to the politicians.
“Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger. Are not institutions like the Election Commission and the CAG not credible enough even though they are appointed by elected governments?” Jaitley asked.
Meanwhile, the revived collegium cleared the names of 24 additional judges in six high courts for appointment as permanent judges. The law minister promised the CJI that the government would send the files to the President to get his signature. “It was my moral duty to see that these 24 additional judges did not suffer uncertainty because the Supreme Court is on Dussehra break,” the CJI said. These 24 additional judges were cleared from the high court collegium for appointment as permanent judges. However, their appointment could not be made permanent owing to the rejection of the constitutional validity of the NJAC.
While the ruling party has lost this round with the SC, the war seems far from over.
