In a historic and landmark judgment running into 1042 pages, the Supreme Court of India has struck down the Constitution (Ninety-ninth Amendment) Act, 2014 as unconstitutional which automatically renders and National Judicial Appointments Commission (NJAC) Act, 2014  infructuous.

WRIT PETITION (CIVIL) NO. 13 OF 2015
Supreme Court Advocates-on-Record-Association and another Petitioner(s) versus Union of India Respondent(s)
Judgment Date: 16-10-2015

The basic question pertained to the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 (99th Amendment) Act), and National Judicial Appointments Commission Act, 2014 (NJAC Act). NJAC was charged with the duty of recommending persons of ability and integrity for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts and of recommending transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court. The President was no more obliged for making appointments to CONSTITUTIONAL COURTS to consult the CJI, the Chief Justices of High Courts and Governors of the States but is obliged to consult the NJAC.

The 99th Amendment Act, 2014, whereby Article 124 had been amended and Articles 124A to 124C had been inserted in the Constitution, contemplated a six-Member National Judicial Commission (NJC). The Chief Justice of India (CJI) was its ex-officio Chairperson. Two senior Judges of the Supreme Court next to the CJI and the Union Law Minister were also ex-officio members, apart from two eminent persons to be nominated by a Committee. Article 124A(1)(d) of the Constitution provided for two eminent persons to be nominated as members of the NJAC. The nomination was by a Committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the Lok Sabha or where there is no such Leader, then the Leader of the single largest Opposition Party in the Lok Sabha. The first proviso mandated that one of the eminent persons shall be nominated from amongst persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women.

Among other, much debated aspect was the second proviso, to Section 5(2) of the NJAC Act, which mandated that the NJAC would not make a favourable recommendation, if any two Members thereof, opposed the candidature of an individual. It was contended, that placing the power of veto, in the hands of any two Members of the NJAC, would violate the recommendatory power expressed in Article 124B. In other words, it would enable two eminent persons (say lay persons) to defeat a unanimous opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court. And thereby negate the primacy vested in the judiciary, in the matter of appointment of Judges to the higher judiciary. It was feared that the above power of veto exercisable by two lay persons, or alternatively one lay person, in conjunction with the Union Minister in charge of Law and Justice, would cause a serious breach in the “independence of the judiciary”.

Thus, the core issue for consideration was whether the amendment altered or damaged the basic structure of the Constitution. According to the Government, primacy of judiciary in appointment of judges is not part of independence of judiciary. Even when appointments are made by Executive, independence of judiciary is not affected.

Following are few important and concluding excerpts of the judgment

Petitioners argued that (i) there could be bipartisan compromise between the party in power and the opposition, resulting in sharing the two slots earmarked for eminent persons. Such possibility would eventually enable political parties to make appointments purely on political considerations, thereby destroying independence of judiciary; (ii) even assuming that the two eminent persons nominated are absolute political neutrals, but are strangers to the judicial system, they would not be able to make any meaningful contribution to the selection process, as they would have no resources to collect appropriate data relevant for the decision making process; (iii) the possibility of two eminent persons vetoing the candidature of a person approved unanimously by the three judicial members of the NJAC itself is destructive of the basic structure.

These two eminent persons can actually stymie a recommendation of the NJAC for the appointment of a judge by exercising a veto conferred on each member of the NJAC by the second proviso to sub-section (2) of Section 5 of the NJAC Act, and without assigning any reason. In other words, the two eminent persons (or any two members of the NJAC) can stall the appointment of judges without reason. That this may not necessarily happen with any great frequency is not relevant – that such a situation can occur is disturbing. As a result of this provision, the responsibility of making an appointment of a judge effectively passes over, in part, from the President and the Chief Justice of India to the members of the NJAC, with a veto being conferred on any two unspecified members, without any specific justification. This is a very significant constitutional change brought about by the 99th Constitution Amendment Act which not only impinges upon but radically alters the process of appointment of judges, by shifting the balance from the President and the Chief Justice of India to the NJAC. To make matters worse, the President cannot even seek the views of anybody (other judges or lawyers or civil society) which was permissible prior to the 99th Constitution Amendment Act and a part of Article 124(2) of the Constitution prior to its amendment. It may be recalled that Article 124(2) of the Constitution enables the President to consult judges of the Supreme Court and the High Court but that entitlement is now taken away by the 99th Constitution Amendment Act. The President, in the process, is actually reduced to a dummy.

The participation of the judiciary as an institution in the NJAC is also farcical. The 99th Constitution Amendment Act does not postulate a ‘veto’ being conferred on any person in the NJAC. But the NJAC Act effectively gives that power to all members of the NJAC despite the 99th Constitution Amendment Act. This is evident from the provisions of the NJAC Act which enable two persons, one of them being the Law Minister to veto the unanimous opinion of the three participating judges (including the Chief Justice of India). Therefore, even if the Judiciary as a whole and as an institution (that is the three participating judges) is in favour of a particular appointment, that unanimous opinion can be rendered worthless by any two other members of the NJAC, one of whom may very well include the Law Minister representing the political executive and another having perhaps nothing to do with justice delivery. This is certainly not what the Constitution, as framed, postulated or intended.

The sum and substance of this discussion is that the struggle for the independence of the judiciary has always been pivoted around the exclusion of the executive in decision-taking, but the inclusion of the Law Minister in the NJAC is counter-productive, historically counter-majoritarian and goes against the grain of various views expressed in various committees – more so since the Law Minister can exercise a veto in the decision-taking body; the presence of the Law Minister in the NJAC is totally unnecessary and illadvised; the presence of the Law Minister in the NJAC casts a doubt on the principle of Cabinet responsibility.

Consequential consideration of issue of primacy of judiciary in appointment of judges as part of basic structure
Conclusion- Accordingly, I hold that primacy of judiciary and limited role of the Executive in appointment of judges is part of the basic structure of the Constitution. The primacy of judiciary is in initiating a proposal and finalising the same. The CJI has the last word in the matter. The Executive is at liberty to give suggestions prior to initiation of proposal and to give feedback on character and antecedents of the candidates proposed and object to the appointment for disclosed reasons as held in Second and Third Judges’ cases.

Whether the Impugned Amendment alters or damages the basic structure?
I would conclude that the new scheme damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary. Under the new scheme such primacy has been given a go-bye. Thus the impugned amendment cannot be sustained

Review of Working of the Existing System
The impugned Amendment and the Act are struck down as unconstitutional. Pre-existing scheme of appointment of judges stands revived.

Download the Full Judgment Click Here >>