In a big jolt to the government, the Supreme Court on Friday (16 October 2015) struck down the Constitution (99th Amendment) Act and the National Judicial Appointments Commission Act as unconstitutional, restoring the collegium system for appointment of judges to the Supreme Court and high courts.
In a “collective order”, the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel said the 99th amendment and the NJAC Act were unconstitutional and void.
While the experts said the National Judicial Appointments Commission (NJAC) was against the constitution, union Law Minister D.V. Sadananda Gowda said that he would consult Prime Minister Narendra Modi and seek legal advice on the issue, while his colleague Ravi Shankar Prasad said parliamentary sovereignty has received a setback.
“The constitution (99th Amendment) Act, 2014 is declared unconstitutional and void” and “The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void”, the court said.
Talking to reporters after the judgement, Gowda said: “I will go through the text in detail and consult our prime minster, legal experts and others.”
The minister who looked surprised at the order said that the Act represented the will of the people as it was backed by all the members in the Lok Sabha and the Rajya Sabha.
Prasad, who was earlier law minister, said the NJAC was part of judicial reforms which was exercised after deep consideration.
“In our view this exercise was done after deep consideration of more than 20 years which was part of judicial reforms. We will go through the judgement and come out with a structured response,” he told reporters.
Legal experts however said that though the NJAC was against Constitution, the collegium system of appointing judges was not flawless. “I am not saying that this system is flawless… this has its own drawbacks. But between the two evils, this is lesser evil,” renowned advocate Kamini Jaiswal said, referring to the collegium system.
The Constitution Amendment and the NJAC Act were brought to replace the 1993 collegium system for the appointment of judges to the Supreme Court and high courts, but Friday’s verdict restored the latter.
“The system of appointment of judges to the Supreme Court, and chief justices and judges to the high courts; and transfer of chief justices and judges of high courts from one high court, to another, as existing prior to the Constitution (99th Amendment) Act, 2014 (called collegium System), is declared to be operative,” said the court order.
The court rejected the prayer by the government for referring the matter to a larger bench for reconsideration of second judges (1993) and the third judges (1998) that had put in place the collegium system.
After pronouncing the order, the court sought suggestions from the senior counsel who had appeared in the matter for improved and transparent functioning of the collegium system. Hearing for the same will take place on November 3.
