Challenges regarding recent enactment for setting up NJAC to decide by the Constitution Bench of Supreme Court

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New Delhi: The Challenge of validity of the recently enacted Central Government’s legislation being ‘National Judicial Appointment Commission (NJAC) Act, 2014’ was now to be decided by the constitution Bench of Hon’ble Apex Judicial Authority of India (SC).

There were a batch of petitions challenging the validity of the recent Act of Parliament being NJAC Act and also of Constitutional Amendment to its Article 124A. It was sought to be claimed that the said Amendment and Act was meant to scrap the well established system for appointing judges.

The Hon’ble Apex Court’s Bench comprising of three Judges, including Justice, Anil R. Dave on this Tuesday referred the concerned batch of petitions to Constitution Bench comprising of five Judges for hearing the issue relating to challenge. Moreover, the Bench of Three-Judges of Hon’ble Apex Court has refused to grant any interim order as to stay relating to setting up of said Commission.

A challenge to the Constitutional amendment i.e. the Constitution (Ninety-Ninth Amendment) Act, 2014, which was to provide setting up the Nation Judicial Appointment Commission and providing the legislation namely NJAC Act, 2014 in this behalf. The NJAC Act of 2014 sought to replace the two-decade old collegium system of appointing judges.

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The said challenges include that the NJAC Act of 2014 was not to had been passed in the month of August last year due to reason that the Constitutional Amendment was assented by Hon’ble President, Pranab Mukherjee on 31st December, of 2014 and as such there was no such constitutional back support to the NJAC Act of 2014 when it was passed. The Association of Supreme Court Advocate on Record, A non-governmental organisation Change India, Centre for Public Interest Litigation- CPIL and even Bar Association of India found challenging the said Amendment and legislations.

Opposing the Challenges, the Attorney General, Mukul Rohatgi on behalf of the Government pleaded that the petitions being non-maintainable as they were premature and academic as the statutory provision to bring in NJAC has not been notified and not brought into operation. Further a support was shown from the Supreme Court Bar Association- SCBA.

The Attorney General had argued by citing various case laws that the Parliament is having power to legislate which is ‘plenary’ and as such, the methodology which the Parliament had adopted while clearing the legislation at the House cannot be tested by the Court.

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by Faim Khalilkhan Pathan.