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The National Democratic Alliance government suffered a huge blow on Friday with the Supreme Court striking down as unconstitutional the NJAC Act, saying the legislations which gives a major role to the executive in appointing judges would breach the "independence" of the higher judiciary.
The ambitious National Judicial Appointments Commission Act, 2014 which replaced the 22-year-old collegium system of judges appointing judges was held as "void" by a five-judge Constitution Bench, which said it impinges upon the concepts of "separation of powers" and the "basic structure" of the Constitution.
However, all the judges were of the view that collegium system of appointment of judges, which has been revived, needed improvement for evolving more transparency.
The judgement, which overrides the laws ratified by 20 state governments, has set the stage for a potential confrontation between the judiciary and the government.
Law Minister D V Sadananda Gowda expressed "surprise" over the verdict, which gave a new lease of life to the replaced collegium system by "declaring it as operative".
He said the next course of action will be decided after consultations with Prime Minister Narendra Modi and Cabinet colleagues.
Attorney General Mukul Rohatgi also said the collegium system, which became re-operational with Friday’s verdict, is not found in the Constitution and is not appropriate as it is an "opaque" system.
The operative portion of the 1,030-page verdict was pronounced in the packed courtroom with Justices J S Khehar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel holding as unconstitutional and void both the Constitution (Ninety-ninth Amendment) Act, 2014 and the NJAC Act.
However, Justice J Chelameswar upheld the validity of the Constitution (Ninety-ninth Amendment) Act and gave his reasons for it but said "in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the ACT (NJAC).
The final court order signed by the five judges said: "The prayer for reference to a larger bench, and for reconsideration of the Second and Third Judges cases of 1993 and 1998 respectively is rejected.
"The Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void.
“The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void.
"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 (Ninety-ninth Amendment) Act, 2014 (called the "collegium system"), is declared to be operative," the bench said.
It further said, "to consider introduction of appropriate measures, if any, for an improved working of the 'collegium system', the matter is listed on November 3.
The NJAC was perceived by some in the legal fraternity as an attempt to interfere with the independence of judiciary while supporters of the new laws were of the view that it should be allowed to function for sometime before being trashed at the outset as the collegium system suffered from various flaws and opaqueness.
NJAC reduces Prez to "dummy", sidelines CJI: Justice Lokur
The legislation to replace the collegium system on appointment of judges to higher judiciary reduces the President to a "dummy" and "denudes" the Chief Justice of India of constitutional significance by being sidelined in the process, said Justice M B Lokur.
Scrutinising the 99th constitutional amendment and the NJAC Act, Justice Lokur said they not only reduce the CJI to a number in the six-member National Judicial Appointment Commission but also convert the mandatory consultation between the President and the CJI to a "dumb charade with the NJAC acting as an intermediary".
"Through the medium of the 99th Constitution Amendment Act and the NJAC Act, this independence (of judiciary) is subtly put to jeopardy. The President has virtually no role to play in the appointment of judges, the CJI is sidelined in the process and a system that is subject to possible erosion is put in place," he said.
Justice Lokur declared the 99th constitutional amendment as "unconstitutional" saying Article 124A impinges on the independence of the judiciary and in the matter of appointment of judges and alters the basic structure of the Constitution.
"The other provisions of the Constitution(99th amendment) Act, 2014 cannot stand by themselves and are therefore also declared unconstitutional. Similarly, NJAC Act, 2014 confers arbitrary and unchartered powers on various authorities under the statute and it violates Article 14 of the Constitution and is declared unconstitutional.
"Even otherwise, the NJAC Act, 2014 cannot stand alone in the absence of the Constitution (99th amendment) Act, 2014,' he said.
He said the result of this declaration is that the collegium system postulated by the 'Second Judges case' (1993) and the 'Third Judges case' (1998) gets "revived".
Justice Lokur, however, said that the procedure for appointment of judges through collegium system laid down in these two decisions along with the revised Memorandum of Procedure needs fine tuning.
"... Under the circumstances, in my opinion, we need to have a 'consequence hearing' to assist us in the matter for steps to be taken in the future to streamline the process and procedure of appointment of judges, to make it more responsive to the needs of the people, to make it more transparent and in tune with societal needs, and more particularly, to avoid a fifth judges case! I would, therefore, allow the petitions but list them for a 'consequence hearing' on an appropriate date,' Justice Lokur said.
Regarding inclusion of two eminent persons in the NJAC, Justice Lokur said they 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...," he said.
"It confers virtually a monarchical power on the eminent persons in the NJAC, a power without any accountability; the categories of eminent persons ought not to be limited to scheduled castes, scheduled tribes, other backward classes, minorities or women but that is a matter of policy and nothing more can be said about this, except that a rethink is necessary; there can be no guidelines for deciding who is or is not an eminent person for the purposes of nomination to the NJAC, but that the choice is left to a high powered committee is a sufficient check, provided the decision of the committee is unanimous," Justice Lokur said.
Further dealing with the new legislation, he said since the 99th Constitution Amendment Act is unconstitutional, the NJAC Act "which is its child cannot independently survive on the statute books."
Regarding the submission of Attorney General Mukul Rohatgi that 99th Constitution Amendment Act is a package deal, Justice Lokur said it was "half-baked" and "it must survive as whole or fall as a whole and there cannot be piecemeal existence."
"Unless all eventualities are taken care of, the package deal presented to the country is an empty package with the wrapping paper in the form of the NJAC Act and a ribbon in the form of the 99th Constitution Amendment Act.
"If it is not possible to answer all the questions in the absence of a composite law, rules and regulations, what was the hurry in bringing the 99th Constitution Amendment Act and the NJAC Act into force as a half-baked measure?," he said, while referring to the AG's submission that it was not possible to answer so many question raised by the bench and the petitioners as this stage.
Justice Lokur gave detailed reasons to quash the new law and favouring revival of collegium system with fine tuning.
He added that while there might be a need for a more efficient or better system of appointment of judges, "NJAC is not the stairway to Heaven", particularly in view of various gaps in its functioning.
He said the NJAC system downgrades the President and the Chief Justice of India and incorporates a host of other features that severely impact on the appointment of judges, independence of the judiciary and the basic structure of the Constitution.
He said there 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 President and the CJI 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 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," he said.
"The 99th Constitution Amendment Act reduces the CJI, despite being the head of the judiciary, to one of six in the NJAC making a recommendation to the President thereby denuding him/her of conventional, historical and legitimate constitutional significance and authority and substantially skewing the appointment process postulated by the Constituent Assembly and the Constitution," he said.
He added that designating the CJI as the chairperson of the NJAC is certainly not a "solace or solution to downsizing the head of the Judiciary".
Justice Lokur said it is for the CJI, as the head of the judiciary, to manage the justice delivery system and to take the final call whether the antecedents or personal traits of a person will or will not interfere in the discharge of functions as a judge.
"There can be a situation where the personal traits of a person may be such as to disqualify that person from being appointed as a judge and there can be a situation where the personal traits, though objected to, would not have any impact whatsoever on the potential of that person becoming a good judge.
"For example, in the recent past, there has been considerable debate and discussion, generally but not relating to the judiciary, with regard to issues of sexual orientation.
It is possible that the executive might have an objection to the sexual orientation of a person being considered for appointment as a judge but the CJI may be of the opinion that would have no impact on his/her ability to effectively discharge judicial functions or the potential of that person to be a good judge," he said.
He further said that in such situations, it is the CJI who should have the last word to say.
Justice Lokur also expressed "anguish" at the manner in which an "attack" was launched by some counsel appearing for the respondents (government) when some critical comments were made regarding appointment of some judges to the apex court.
"It was vitriolic at times, lacking discretion and wholly unnecessary. Denigrating judges is the easiest thing to do -- they cannot fight back -- and the surest way to ensure that the judiciary loses its independence and people lose confidence in the judiciary, which is hardly advisable.
"The Bar has an equal (if not greater) stake in the independence of the judiciary and the silence of the Bar at relevant moments is inexplicable. The solution, in the larger canvas, is a democratic audit, an audit limited to the judiciary and the Rule of Law. If some positive developments can be incorporated in the justice delivery system (in the larger context) they should be so incorporated," he said.