NEW DELHI, Apr 14:
Two days after the Government notified the controversial NJAC law to remove the collegium system of appointment of judges, a Constitution Bench of the Supreme Court will commence hearing from tomorrow to examine the validity of new measure and is likely to consider passing an interim order to staying the operation of the Act.
A three-judge bench of the apex court on April 7 had referred to a five-judge Constitution Bench, a batch of petitions challenging the validity of National Judicial Appointments Commission (NJAC) Act to replace the two-decade- old collegium system of appointing judges to higher judiciary.
The court had refused to stay the implementation of law with the observation that all the issues arising out of the petitions would be decided by the Constitution Bench.
Two days thereafter, the Chief Justice of India H L Dattu Constituted the Constitution Bench comprising Justices A R Dave, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel to hear the matter.
Justices Joseph and Goel are the two new judges in the bench while the other three had heard the matter before thinking it fit that the issues in the pleas required to be adjudicated by a larger bench.
However on April 13, the Government notified the National Judicial Appointments Commission (NJAC) Act along with a Constitutional Amendment Act (99th Amendment Act) to give constitutional status to the new body to appoint judges.
NJAC was signed into an Act by President Pranab Mukherjee on December 31, 2014.
Under the collegium system which came into existence in 1993 after a Supreme Court judgement, five top judges of the apex court recommend transfer and elevation of judges to Supreme Court and 24 High Courts.
According to the new Article 124(A) inserted in the Constitution, two eminent persons will be nominated to the Commission as members by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in Lok Sabha or where there is no such LoP, then the leader of single largest Opposition party.
One of the eminent persons will be nominated from among the persons belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women.
The eminent persons will be nominated for a period of three years and will not be eligible for renomination.
The NJAC will be headed by the Chief Justice of India. Two senior-most apex court judges, the two eminent persons and the Law Minister will be the members of the high-level panel. Secretary (Justice) in the Union Law Ministry will be the convenor of the NJAC.
The Supreme Court Advocates on Record Association (SCAORA), Bar Association of India (BAI) and some individual lawyers have challenged the new system of appointment of judges while the Centre has got support from Supreme Court Bar Association (SCBA) and eminent jurists like T R Andhyarujina and others in its effort to push out the collegium system of appointment of judges by the judges.
Before the three judge bench, Attorney General (AG) Mukul Rohatgi, had said that the power of Parliament to make law is “plenary” and hence, the methodology adopted by the legislature in clearing the law on the floor of the House cannot be “tested” by the court.
Rohtagi had made the submission after noted jurists like F S Nariman, Anil Divan and some others had contended that as per constitutional scheme, the NJAC Act should not have been passed ahead of enabling constitutional amendment.
Those opposing the new law on appointment of judges for higher judiciary had submitted that the issue should be referred to a Constitution Bench of five judges.
Petitioners SCAORA and BAI, represented by Nariman and Anil Divan respectively, had opposed the two Acts and sought that direction be passed to maintain status quo, saying the entire process would otherwise become irreversible.
However, the SCBA had strongly favoured the Government on laws on appointment of judges in higher judiciary, saying there has been “unanimity” that the present mechanism has “serious pitfalls”.
“There is unanimity in the view that there are serious pitfalls in the collegium system,” SCBA president and senior advocate Dushyant Dave had submitted.
The signing of the two bills into a law by the President paved the way for scrapping of the 20-year-old collegium system.
Once the new system comes into place, the task of selecting and transferring Supreme Court and high court judges will finally shift from the collegium to a committee headed by the Chief Justice of India.
The NJAC Act provides for the procedure to be followed by the NJAC for recommending persons for appointment of judges of the Supreme Court, the Chief Justice and other judges of the 24 high courts. (PTI)
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