Supreme Court strikes down NJAC; collegium system to stay

The five-judge bench, however, says that it would seek the assistance of lawyers to improve the collegium system; this will be heard on 3 November

In a huge blow to the government’s plan to overhaul the judicial appointment process, the Supreme Court on Friday struck down the constitutional amendment which introduced a six-member panel for selecting judges to the higher judiciary, declaring it unconstitutional. It also struck down the law which laid down the modalities for the panel, referred to as the National Judicial Appointments Commission (NJAC).

With this, the two-decade-old system of a small group or collegium of judges appointing judges to the apex court and high courts stands restored.

A five-judge bench comprising Justices J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A. K. Goel, however, said that it would seek the assistance of lawyers to improve the collegium system. This will be heard on 3 November.

Four judges ruled in the majority, while justice Chelameswar was of the opinion that the two laws were constitutional.

The court also rejected a plea for referring the case to a larger bench to reconsider a 1993 nine-judge bench decision which introduced the collegium system and established the primacy of the judiciary in the appointment of judges.

The NJAC Act proposed that the six-member panel would comprise chief justice of India, two senior most apex court judges, the law minister and two eminent persons. These two eminent persons would have been chosen through a selection committee of the CJI, the prime minister and the leader of the opposition.

The 99th Constitution Amendment Act 2014 and the NJAC Act were first introduced in Parliament last year in August. Both houses swiftly passed the two bills.

President Pranab Mukherjee gave his assent to the two bills on 31 December after the government received ratification from as many as 16 states. That number had risen to at least 20, attorney general Mukul Rohatgi had told the court. The government notified the two laws on 13 April, amid the litigation which finally reached a five-judge constitution bench.

In hearings which saw the who’s who of the legal fraternity, the issue of the primacy of the judiciary in appointments was a consistent contention.

The government’s argument was that NJAC included all the stakeholders, and still allowed three members of the judiciary to have a say in appointments.

However, the numerous petitioners, including the Supreme Court Advocates-on-Record Association, Bar Association of India, and several senior lawyers, like Rajeev Dhavan and Ram Jethmalani, opposed the inclusion of the executive in the appointment of judges.