One of the contentious provisions of the new law was the inclusion of two eminent persons to the NJAC which included the Chief Justice of India, two senior-most Judges of the Apex Court and the Union Law Minister.
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“I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex-officio Member of the NJAC”.
The party said the new appointment system for judges could have been worse than the existing one.
“We are not going to support adventurism of the government per se”, Congress spokesman Abhishek Singhvi told reporters when asked whether the party, which had backed the NJAC bill, will support any fresh move by the government to bring a new law to give the executive a say in appointment of judges to the higher judiciary. It is not right for judges to select other judges, because it produces an in-breeding and closed judicial system.
According to former Additional Solicitor General of India, Sidharth Luthra,”The Constitution provides certain safeguards for judicial appointments and puts them at par with the constitutional appointees like the President”. “How can judges themselves decide on how they are to be appointed?”
The fourth error, he said, is that the court again assumed the role of the legislature when it conceded that the collegium system was defective and fixed a hearing for its improvement.
The procedure for the appointment of these people had been a major bone of contention between those challenging the act and those defending it.
Describing the Supreme Court ruling striking the 99th Constitutional Amendment, which provided for establishment of the National Judicial Commission to appoint judges of higher courts, Finance Minister Arun Jaitley said the judgement was essentially a “politician bashing” and defied logic on several counts. For instance this week the Supreme Court ruled that the nodal national identity card called the Aadhar card, introduced by the previous Manmohan Singh government is not compulsory. That would make the life of common people more hard.
Noted jurists like Fali Nariman, Anil Divan and Ram Jethmalani were among prominent senior advocates who had argued against the NJAC replacing the collegium system.
Also, under Article 217, the president appoints HC judges after consultation with the CJI.
There was hardly a need for the government to push through such an ill-conceived legislation. Constitution (99th amendment) Act was passed unanimously in both the Houses and 20 State Assemblies ratified the amendment. He cared a damn about the fallout of a judicial system directly controlled by the regime. “Unquestionably independence of the judiciary is a part of the basic structure of the Constitution”.
Parliament now has the option of improving the amendment but it is unlikely that any such future amendment will pass Supreme Court scrutiny thus setting the stage for a continuing judiciary versus executive friction. May 5: South Carolina grills Centre over demand for revisiting its 1993 judgement that brought in the collegium system.
Prasad said it is an admission that the present system had shortcomings and it needed a correction.
“The ever increasing pendency of matters before various constitutional courts of this country is clearly not a certificate of efficiency… bewildering number of conflicting decisions rendered by the various benches of this court only indicate that a comprehensive reform of the system is overdue”, he observed.
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Jaitley, whose voice is among the most important after Prime Minister Narendra Modi’s in the government, said democracy would be in danger if the elected are undermined. “The effort now is that we restore the spirit of original Constitution”. If judiciary, executive and legislature toe each other’s line, that can give way to the worst form of tyranny.
