Petitions challenging the creation of NJAC to be heard from the 10th of March

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The Supreme Court will initiate the proceedings with respect to the petitions question the constitutional and legal validity of acts constituting National Judicial Appointments Commission. The National Judicial Appointments Commission has been proposed as a substitute to the current collegium system of appointment of judges. The NJAC is touted to transfer the authority and power of appointments to the executive, much like the system in place before the onset of the collegium system. The first hearing in the matter is supposed to be held on Tuesday.

A three judge bench of the Court, consisting of Justice Anil R. Dave, Justice J. Chelameswar and Justice MadanLokur is to preside over the case, examining the constitutionality of the 2 impugned Acts in light of the basic structure of the constitution, under its inherent power of judicial review. After the submission of preliminary arguments in the matter, the plethora of issues emanating out of the cases at hand, may very well be transferred to a larger bench. This is consistent with the fact that 1993 judgment of the Supreme Court constituting the collegium system was handed out by a bench of 9 judges. Hence, in order to overrule the impugned judgment, a bench of more than 9 judges is needed.

The petitions assume a great amount of significance in the current political climate, where sparks flying between the judiciary and the executive have become a rather common occurrence. The hearing in the above matter will determine the scope and boundaries of judicial independence and redefine it in the context of a powerful executive. The quintessential conflict, all set to be the highlight of the next year or two will be closely watched by all and sundry. A showdown with the executive is bound to happen in case the judiciary decides to hold the new Acts in conflict with the Constitution. Those keeping a close watch over the issue are of the opinion that an unfavourable judgment for the executive is bound to cast clouds over judicial independence. It is noteworthy that the top court had earlier dismissed petitions challenging the creation of NJAC observing that they were ‘premature’ as Parliament had still not passed the bills confirming NJAC’s creation. However, such reasoning is of no consequence at the moment.

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Earlier, the Constitution (121st Amendment) Bill, 2014 as well as the National Judicial Appointments Commission Bill, 2014 were passed in August last year and since then have received the President’s assent and published in the Official Gazette accordingly. However, it is noteworthy that government is yet to notify the date denoting the beginning of the operation of the Acts. The reason for the same has been said to be the pendency of petitions in Court challenging the validity of the said Acts. As such, the Government is not inclined to enforce the Acts until the petitions are disposed of. The framing of the rules as addendum to the Acts, detailing the mechanisms for NJAC’s functioning have also been deferred, allowing the collegium system in the meantime.

It is noteworthy that nearly 8 petitions (mostly Public Interest Litigation petitions) had been filed in the Supreme Court pleading to strike down the two Acts since they received the Presidential assent. One amongst the said petitions has been filed by the lawyer PrashantBhushan through Centre for Public Interest Litigation, former ASG Bishwajit Bhattacharya, Advocate M.L. Sharma and Mr.Bhim Singh of J&K Panther’s Party. The two Acts have also been brought into question by the Supreme Court Advocates on Record Association.

According to the petitions, the two Acts take away the power of the Collegium (read judiciary) as the primary appointment authority for judicial appointments and as such contrary to the principle of judicial independence. The currently functioning collegium system was created by a Supreme Court decision in 1993.

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by Siddhartha Singh.