Courts Not Empowered To Test Validity of NJAC before Notification: Central Government

On Tuesday, the Central government presented before the Supreme Court that the Courts are not empowered to check the constitutionality of National Judicial Appointments Commission before its notification. The bench consisted of Justice Anil R. Dave, Justice Chelameswar and Justice Madan B. Lokur. The special Court was dealing with the maintainability of group of petitions that questioned the constitutionality of the legislation on NJAC as well as the 99th Constitutional Amendment Act. These Acts though received the Presidential assent, had not yet notified by the Government.

The Hon’ble Supreme Court started considering the case from March 10th on the constitutional validity of 99th amendment and NJAC Act. The NJAC Act had ended up judicial appointments through collegiums. The main case was filed by Advocates-on-Record Association on January this year. The NJAC Bill was ratified by 16 States and both Constitutional Amendment Bill and the NJAC Bill were passed in August last year. Advocate Fali Nariman and Anil Divan appeared before the Court for the petitioners. According to the petitioners, the Constitutional Amendment affects the basic structure of Indian Constitution and had also impinged into the independence of judiciary. They have also applied for referring the matter to the Constitutional bench.

Advocate Anil Divan submitted that the main essentials of valid enactment are its introduction in the Houses and getting assent of the President. When assent is obtained it becomes a valid law. The enforcement of the law is a final stage and as far as NJAC Act is concerned, it needs to be notified by the Central Government.

According to Mukul Rohatgi, Attorney General, after the Bill obtained the assent of the President it is deemed to have come into force and therefore its validity can be challenged in the Court. Advocate Nariman pointed out that when an Act is enforced, it attains the status of law and is permitted to be challenged before Court. Such Acts can be questioned on lack of legislative competence, contravention of fundamental rights and is against the terms of the Constitutional provisions.

by Jewel Panicker.