Recently, a former solicitor general of India had initiated a Public Interest Litigation before the hon’ble Apex Court questioning the authority of NJAC. The Parliament had formulated an enactment that fragmented the collegium system which was changed where the judges were appointed by the judges themselves. This was the practice followed in the judicial system since 20 years. Bishwajit Bhattacharyya, the former additional solicitor general pointed out that the law which proposed the high-level National Judicial Appointment Commission (NJAC) directly attacked the judicial independence and also applied to the Supreme Court to invalidate the law.
According to the officials, the NJAC will consist of six members including the Chief Justice as its head. The Commission will be inclusive of two senior most Supreme Court judges, two eminent personnel and the law minister for the Union. Out of two eminent persons, one will be selected from the Scheduled Castes, Scheduled Tribes, Minorities, Other backward classes or from women. The petitioner submitted before the Court that the power of the Chief Justice given under Constitution of India had been taken away and was reinstated by the new Commission where persons other than judges get the opportunity to oppose the decision of the Chief Justice. When such a decision is reached by the Parliament, it will directly impinge on the authority of the Chief Justice and other judges of the Supreme Court that affects the judicial independence and acts against the principle of separation of powers.
Above all, the law would take away the basic structure of the Constitution, the petitioner said. The petitioner also noted that it will override the Constitutional mandates that provides for the appointing and transferring of judges of the Apex Court. Hence, the National Judicial Appointment Commission Act as well as the amendment made to the Constitution is ultra vires the Constitution of India, argued the petitioner. Previously, the Supreme Court had declined to interfere on the constitutionality of the Amendment Bill due to the reason that the bill was untimely to challenge. The new Act was given assent by the President on 31st December, 2014.