No fresh appointment of SC and HC judges until PILs challenging NJAC are decided, says Law Minister

In a strange move, the Union Law Minister Shri D.V. Sadananda Gowda has stated that no fresh appointments of judges would be made to the Supreme Court and high courts until the public interest litigations (PILs) filed in the Supreme Court challenging the validity of the National Judicial Appointments Commission (NJAC) are disposed of. [Update: Please also see this update.]

The Economic Times has reported quoting the Law Minister saying: “The ball is in CJI’s court as he is the chief of NJAC and his cooperation is very much needed for framing of rules and appointing two eminent personalities … There should not be any confrontation… If (CJI) says go ahead, we can do it, otherwise it will be a problem.”

Law Minister’s statement came a few days after the Chief Justice of India Shri H.L. Dattu had said in an interview that the appointment of judges to the Supreme Court and high courts under the existing collegium system would continue till the government put in place the new National Judicial Appointments Commission to replace it.

Thus, a very strange situation has emerged. The Government is yet to notify in the official Gazette the coming into force of the provisions of the Constitution (99^th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014, which provide for the establishment of the NJAC. Therefore, the NJAC is yet to be formally established. Moreover, while PILs have been filed in the Supreme Court challenging the aforesaid Constitutional Amendment, there is no interim order passed by the Supreme Court staying the operation of the aforesaid Acts or staying the setting up of NJAC. From legal point of view, the Collegium system will continue to exist until NJAC is formally set up under the provisions of the aforesaid Acts. Therefore, the option before the Government is to set up the NJAC by first bringing into force the aforesaid Constitutional Amendment and the NJAC Act, 2014; and, until the NJAC is formally set up, the Government has no option but to honour the recommendations made by the Supreme Court Collegium for appointment of judges to the Supreme Court and high courts. Therefore, the statement made by the Law Minister Shri Gowda saying that no fresh appointments of judges to Supreme Court and High Courts will be made until the PILs challenging the validity of NJAC are disposed of by the Supreme Court, is legally not correct.

Here is what the Government can do:

1. Bring into force the aforesaid Constitution (99^th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014, by notifying in the official Gazette the date of their coming into force.
2. Frame and notify the Rules under the said Act to operationalise the provisions of the said Act.
3. Hold a meeting of the selection committee comprising of the Prime Minister, the Chief Justice of India and the Leader of Opposition to select two eminent persons as members of the NJAC, as required under the provisions of the above laws.
4. Formally notify the setting up of the National Judicial Appointments Commission comprising of the Chief Justice of India (chairperson), two senior most judges of the Supreme Court (members), the Union Law Minister (member), and the two eminent persons (members) selected as above.

Once the NJAC has been set up formally in the manner mentioned above, the Collegium system would get replaced by the NJAC and the appointment of judges to the Supreme Court and High Courts will have to be made on the recommendations of the NJAC alone. Of course, it is possible that during the hearing of the aforesaid public interest litigations, the Supreme Court may decide to pass an interim order staying the operation of the NJAC. But, unless that is done by the Supreme Court, the NJAC, once formally set up, can exercise its powers of recommending appointment of judges to the higher judiciary in place of the existing collegium system.

Until NJAC is formally set up as above, the Government is not right in saying that no fresh appointments of judges would be made to the Supreme Court and high courts until the aforesaid public interest litigations are disposed of by the Supreme Court.

It is pertinent to point out that the aforesaid public interest litigations are likely to be initially heard by a 5-judge Constitution bench of the Supreme Court, and thereafter these cases are likely to be referred to an 11-judge bench of the Supreme Court since the earlier two judgments of the Supreme Court relating to the Collegium system were decided by 9-judge benches of the Supreme Court [see, Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 : AIR 1994 SC 268; and, Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739 : AIR 1999 SC 1]. This process is likely to take quite some time, may be a few months on may even be a few years. Therefore, keeping on hold the appointment of judges to the Supreme Court and high courts until the said PILs are disposed of, is not the correct thing to do from legal or practical point of view.

Instead of going into a confrontation mode, the Government of India should urgently initiate the next steps necessary to set up the NJAC in consultation and close cooperation with the Chief Justice of India. In his administrative capacity, the Chief Justice of India will be expected to fully cooperate with the Government of India in the setting up of the NJAC, while the judicial side of the Supreme Court can continue to separately handle the PILs challenging the validity of the NJAC.