NJAC unconstitutional; collegium system of appointing judges to continue: Supreme Court

In a judgement with far-reaching consequences, the Supreme Court on Friday struck down the NJAC Act holding it unconstitutional.

New Delhi: In a judgement with far-reaching consequences, the Supreme Court on Friday struck down the National Judicial Appointments Commission (NJAC) Act holding it unconstitutional.

Stating that the present collegium system of judges appointing judges in the higher judiciary would continue, the apex court also held as unconstitutional and void the 99th Constitutional Amendment to bring in the NJAC.

Ruling on a batch of petitions, a five-judge Supreme Court bench headed by Justice JS Khehar observed that the NJAC Act violates the basic structure of the Constitution as it interferes with the independence of the judiciary enshrined in the Constitution.

The court stated that the system of appointment of judges for Supreme Court and High Courts has been existing in the Constitution prior to the 99th Constitutional Amendment.

“The 99th Constitutional Amendment and NJAC Act have been declared unconstitutional... the old collegium system has been restored,” Surat Singh, advocate, told reporters outside the Supreme Court.

While delivering the 4-1 majority verdict, the court also rejected the plea of the Central government that the petitions challenging the NJAC Act be referred to a larger bench.

While four judges -- Justices JS Khehar, MB Lokur, Kurian Joseph and AK Goel -- declared as unconstitutional the 99th Constitutional Amendment, Justice J Chelmeswar held that it is validity.

The National Judicial Appointments Commission was set up by the Central government to appoint judges.

The petitions had challenged the constitutional validity of the NJAC Act which had brought to an end the two-decade-old collegium system of judges appointing judges in the higher judiciary.

The court today said that it will hold further hearings on improving the present collegium system of appointing judges. It fixed November 3 as the next date for the hearing.

The apex court bench had reserved its judgement on July 15 after a marathon hearing for 31 days on the issue of validity of the 99th Constitutional Amendment and the NJAC Act.

Reacting to the development, Union Law Minister DV Sadananda Gowda said that he is surprised by the verdict of the Supreme Court.

“Will of the people had been brought to the court. (We) will (now) consult senior colleagues and the Prime Minister and take decision,” Gowda said.

“NJAC was completely supported by Rajya Sabha and Lok Sabha; it had 100 percent support of the people,” he added.  

The petitions challenging the new legislation were filed by the Supreme Court Advocates on Record Association (SCAORA) and others contending that the new law on the selection and appointment of judges was unconstitutional and aimed at hurting the independence of judiciary.

However, the Centre had defended the introduction of the new law saying that the two-decade-old collegium system where judges appointed judges was not free from defects and got the support of the Supreme Court Bar Association.

The measure was also supported by 20 state governments which had ratified the NJAC Act and the constitutional amendment.

One of the contentious provisions of the new law was the inclusion of two eminent persons to the NJAC which included Chief Justice of India, two senior most judges of the apex court and the Union Law Minister.

Under the law, two eminent persons were to be nominated by a committee consisting of the Chief Justice of India, Prime Minister, and Leader of Opposition in the Lok Sabha or where there is no such LoP, the leader of single largest opposition party in the House.

Further, it had envisaged that of the two eminent persons, one would be from the Scheduled Castes or Scheduled Tribes or OBCs, minority communities or a woman.

The eminent persons were to be nominated for a period of three years and would not have been eligible for re-nomination.

The issue of eminent persons on the panel was a major bone of contention between the parties and, on final day of hearing, the bench had differed with the Centre, saying inclusion of laymen in the new system of judicial appointments "cannot work".

Defending the provision for inclusion of two eminent persons, Attorney General Mukul Rohtagi had said, "If we can have laymen in some other Commissions and Tribunals then why not in the six-member NJAC."

Noted jurists like Fali Nariman, Anil Divan and Ram Jethmalani were among prominent senior advocates who had argued against the NJAC replacing the collegium system.

(With PTI inputs)