Within a week of the President giving his assent to the Constitution (99th Amendment) Act, 2014, and to the National Judicial Appointments Commission Act, 2014, setting up the National Judicial Appointments Commission (NJAC), three writ petitions have been filed under Article 32 of the Constitution in public interest (PIL) in the Supreme Court challenging the constitutional validity of the aforesaid Acts. These petitions have been filed mainly on the ground that independence of judiciary is a basic feature of the Constitution that cannot be violated by passing the aforesaid Acts.
It may be pointed out that on 31 December 2014, the President has given his assent to the aforesaid Constitutional Amendment as well as the aforesaid NJAC Act. They were notified in the Gazette of India on that very day. However, these Acts are yet to come into operation since a separate notification is yet to be issued by the Central Government bringing them into operation.
The NJAC consists of the Chief Justice of India who is its ex-officio chairman, two other senior most judges of the Supreme Court, the Union Law Minister and two eminent persons. Thus, the two-decade old system of appointing High Court and Supreme Court judges through the collegium system is being replaced by the National Judicial Appointments Commission, which does away with the near-monopoly of the judiciary in the appointments made to higher judiciary in India.
It is pertinent to mention that the collegium system of appointing judges to Supreme Court and High Courts came into existence by the judgment of a 9-Judge bench of Supreme Court in the case of Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 : AIR 1994 SC 268. Subsequently, another 9-Judge bench of the Supreme Court in the case of Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739 : AIR 1999 SC 1, reaffirmed the collegium system while making a few changes in that system. Thus, the collegium system of appointing judges is in existence for about two decades now. It gives primacy to the opinion of the Chief Justice of India in the consultation process for appointing judges so much so that the collegium gets a near-monopoly in the judicial appointments and the Government can at best send a proposal back for reconsideration. Now, this collegium system is sought to be replaced by the NJAC.
It is noteworthy that certain writ petitions had earlier been filed in 2014 challenging the setting up of the National Judicial Appointments Commission, however, the Supreme Court refused to entertain those petitions at that stage since the Constitutional Amendment and the NJAC Act were yet to become law. Liberty was granted to file fresh petitions as and when the assent of the President was given to these changes in law.
Now that the President has already given his assent to these Acts, and they have been notified in the official Gazette, fresh petitions have been filed in the Supreme Court challenging the constitutional validity of the NJAC.
These three writ petitions have been filed by (1) senior advocate Shri Bishwajit Bhattacharya (who is a former Additional Solicitor General of India), (2) senior advocate Shri Bhim Singh, and (3) the Supreme Court Advocates on Record Association (SCORA) (this last petition is settled by the eminent jurist Shri F.S. Nariman).
In one of these petitions, it is claimed that these Acts adversely affect the independence of the judiciary and the doctrine of separation of power, both of which are basic features of the Constitution. It is stated that the basic structure of Constitution cannot be permitted to be defiled, defaced and demolished.
It may be pointed out that in 1973, in the celebrated case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225 : 1973 Supp SCR 1, decided by a narrow majority of 7 to 6 judges, a 13-judges bench of the Supreme Court had held that there are certain basic features of the Constitution, which cannot be destroyed or damaged while amending the Constitution. Thus, it meant that while any provision of the Constitution could be amended by following the procedure prescribed under Article 368 of the Constitution, such a power to amend was not absolute in as much as the basic features of the Constitution could not be destroyed or emasculated during such an amendment. The court had refused to give an exhaustive list of all the basic features of the Constitution, saying that this question was to be decided by the court on a case to case basis to see if a particular amendment of the Constitution affects a basic feature of the Constitution.
In this regard, it may be mentioned that independence of judiciary has been held to be a basic feature of the Constitution in the cases of Shri Kumar Padma Prasad v. Union of India and others, AIR 1992 SC 1213 (para 37); Supreme Court Advocates-on-Record Association and another v. Union of India, AIR 1994 SC 268; Registrar (Admn.), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by LRs., AIR 1999 SC 3265; All India Judges’ Assn. (III) v. Union of India, (2002) 4 SCC 247 at p. 268 : AIR 2002 SC 1752; Jasbir Singh v. State of Punjab, (2006) 8 SCC 294 at p. 301.
Likewise, separation of powers between the legislature, the executive and the judiciary has been held to be a basic feature of the Constitution in the cases of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225 : 1973 Supp SCR 1 (Sikri, C.J., para 302; Shelat and Grover, JJ., para 599). Also see, Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (Ray, C.J., p. 2320; Beg, J., p. 2426-2430, 2472; Chandrachud, J., p. 2742) : 1975 Supp SCC 1; State of Bihar and another v. Bal Mukund Sah and others, AIR 2000 SC 1296 (para 32).
It is on the basis of these grounds, mainly, that the aforesaid Constitutional Amendment and the NJAC Act have now been challenged. So, a new chapter in the constitutional history of India is likely to be written.
[Note: Some of the details mentioned in this article have been taken from my book Need to Amend a Constitution and Doctrine of Basic Features (2007 Edition), by Dr. Ashok Dhamija, appx. 600 pages, published by Wadhwa and Company Nagpur, New Delhi (ISBN:978-81-8038-253-6).]
