NJAC challenge revives in Supreme Court; AoR Association, Senior Advocates file petitions

Since the National Judicial Appointments Commission Bill has now received the assent of the President, petitions challenging the same have been filed again in the Supreme Court..The Supreme Court Advocates on Record Association (SCAORA), Senior Advocate Bhim Singh and Senior Advocate Bishwajit Bhattacharya are among the petitioners in the matter..Senior Advocate Bhim Singh mentioned the matter before the Chief Justice Court a few minutes back and sought for an early hearing but it was declined..In the petition filed by SCAORA through its Secretary Vipin Nair, both the Constitution 99th Amendment Act, 2014 (99th Amendment Act) which amends Article 124 and 217 of the Constitution and the National Judicial Appointments Commission Act, 2014 (NJAC Act) have been challenged..The Petition, which has been settled by Senior Advocate Fali S Nariman, states that the NJAC Act was introduced in the Parliament before the amendment of Article 124 of the Constitution and that in itself made the NJAC Act null and void. Further, SCAORA has also contended that the 99th Amendment Act is itself unconstitutional in that it takes away the primacy of the Judiciary in the appointment of judges, thereby impinging the Basic Structure of the Constitution..As per the petition,.“The Constitution (99th Amendment) Act of 2014 as passed by the two houses of Parliament, by providing for a National Judicial Appointments Commission consisting of the Chief Justice of India; and two other senior Judges of the Supreme Court next to the Chief Justice of India; the Union Minister in charge of Law and Justice; and two eminent persons to be nominated by a committee (consisting of the Prime Minister, Leader of Opposition or leader of single largest party in Lok Sabha and the Chief Justice of India), takes away the primacy of the collective opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court of India next to the Chief Justice of India i.e. even if all three senior most judges of the Supreme Court of India collectively recommend an appointee, the appointment is enabled to be a suspended by majority of three non-Judge members.”.The petition also submits that Article 124C inserted in the Constitution gives the Parliament unbridled power to regulate judicial appointments through ordinary law without any safeguards and the same cannot be challenged by using the Basic Structure doctrine..“It has been held repeatedly by this Court that the doctrine of Basic Structure cannot be used to challenge ordinary legislation. Therefore, as per the law laid down by this Court, it would not be possible to challenge any law made under the proposed Article 124C…Article 124C leaves open enormous scope for the Parliament, by ordinary legislation, to give primacy to the Executive or Veto powers to the Executive or other unchecked powers to the Executive for the appointment of Judges to the higher Judiciary.”.SCAORA has, therefore, prayed for declaring the 99th Amendment Act as unconstitutional and the NJAC Act to be beyond the legislative competence of the Parliament..Another petition filed by Senior Advocate Bhim Singh also raises a similar concern – that the recommendation of the Chief Justice and the two judges in the NJAC will only have the status of mere suggestion, as their recommendation could be vetoed by the other three members..Last year, the Supreme Court had refused to entertain five PILs challenging the JAC on the ground that the challenge was premature since the Constitution Amendment Bill was yet to receive the assent of the President.