After hitting a few roadblocks, such as Justice Dave’s recusal and objections to Justice Khehar’s presence on the Bench, the NJAC hearings are finally underway in the Supreme Court..A five-judge bench comprising Justice Khehar, Justice Chelameswar, Justice Lokur, Justice Kurian Joseph and Justice Goel are presently hearing arguments from the 10 petitioners challenging the Constitutionality of the NJAC Act..A few weeks back, in a move to hasten the process of appointing judges to the higher judiciary, the Central Government notified the NJAC Act even before the hearings could commence. As and when the NJAC is set up, it will decide who shall be filling up the 346 vacancies that currently exist in the higher judiciary..However, Chief Justice of India HL Dattu recently threw a spanner in the works of the government. He wrote a letter to Prime Minister Narendra Modi saying that he would not participate in proceedings for the selection of the two ‘eminent persons’ of the NJAC before the apex court passes a verdict on the petitions..So what are the questions of law that have been raised in this batch of petitions? What will senior counsels such as Fali Nariman, Mukul Rohatgi, and KK Venugopal be arguing in the course of the hearings?.Before getting into the grounds, here is a table of some of the petitioners and their counsels:.The respondents include the Central Government, 22 states and 2 Union Territories. Some of the lawyers appearing for them include Attorney General Mukul Rohatgi and ASG PS Narasimha for Union of India, KK Venugopal for Madhya Pradesh, and Aryama Sundaram and Arvind Datar for Puducherry..So what are the various grounds raised?.1. Separation of powers & violation of Basic Structure.The argument common to all petitions is that the NJAC will lead to a violation of Article 50 of the Constitution, i.e. the separation of the judiciary from the executive. Furthermore, the enforcement of the NJAC Act would lead to a scenario where the biggest litigant (the government) is appointing the judiciary..Describing this provision as being part of the basic structure of the Constitution, the petitioners have cited Kesavanada Bharati and Indira Gandhi vs. Raj Narain, where it was held that the power to amend the Constitution under Article 368 does not enable Parliament to alter the basic structure of the Constitution..Some, such as senior counsel Raju Ramachandran, have argued that the judgment in Kesavananda was “Constitutionally unsound” because it,.“…it acts as a roadblock to the will of the people. For example, the ‘Basic Structure doctrine’ would come in the way, if we decide to switch from a Parliamentary form of government to a Presidential form of government. But in the context of the present overwhelming majority [of the ruling party in the Parliament] due to which apprehensions have been expressed about the rights of minorities, I have asked myself whether it is time to re-think my own position.”.Will the 5-judge Bench concur?.Another ground for challenging the NJAC is the fact that the Act proposes to dilute the powers of the Chief Justice of India; in a number of constitutional provisions (see box), the words “Chief Justice of India” will be replaced with “NJAC”..Laying emphasis on the importance of the office of the CJI, one of the petitions cites the First Judges case, where it was held,.“In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’ and formed in the manner indicated in the judgment, would have primacy.”.The NJAC Act then, sets aside this very primacy..The violation of the concept of federalism has also been cited; the NJAC Act proposes to annul the Governor’s role in appointing a High Court Judge under Article 217 of the Constitution..2. No primacy to SC judges.The six-member NJAC will comprise 3 Supreme Court judges including the Chief Justice, the law minister and 2 eminent jurists. However, there is a possibility of the CJI and two senior-most Judges of the SC being out-voted by two non-judge Members of NJAC, which effectively means that a situation may arise where judges are appointed by non-judges..3. Judges are most fit to appoint judges.One of the petitions quotes from the Second Judges case, where it was held:.“The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench. The Chief Justice of India and the senior most puisne Judges, by reason of their long tenures on the Supreme Court, are best fitted to achieve this objective.”.In essence, the argument is that judges would be best equipped to evaluate the merit of a potential judge..4. Assessment by ‘eminent persons’ .The ability of the two ‘eminent persons’ to assess an individual whose name has been recommended for elevation has been questioned. An example was given wherein one of the eminent persons/jurists belongs to Delhi, and the question is of the elevation of a judge of the High Court of Kerala to the Supreme Court. It is argued that in such a case, there will be no basis of assessment..5. No criteria for appointment .The criteria of suitability for appointment of Judges to the higher judiciary not been provided for in the impugned 99th Constitution Amendment Act. Moreover, the NJAC Act does not lay down any standard of transparency, which is a sine qua non for appointments to high offices..6. Full-time appointment body required.The petitions also contain grievances against specific provisions of the new laws. For instance, questions about the ability of an ex-officio body like the NJAC have been raised. As one petition states,.“Selecting more than 100 judges of the higher judiciary every year (from amongst thousands of potential candidates) in a rational and fair manner is an onerous task requiring a full-time and not an ex-officio body. Before making a selection, the candidates have to be evaluated for their competence, integrity, judicial temperament and their sensitivity for the concerns of common persons…Having an ex-officio body would lead to arbitrary appointments, which violates Article 14 and 21 of the Constitution of India.”.A body on the lines of the Judicial Appointments Commission (JAC) of the United Kingdom, which is also a full-time body, has been suggested..7. Powers of Parliament to change regulations of NJAC.By moving the power to appoint judges into an Act, Parliament now has an unfettered ability to amend laws and regulations pertaining to functioning of the NJAC. In other words, indirectly modifying the appointment procedure without requiring a constitutional amendment. This, it may be argued, suffers from the vice of excessive delegation..8. Venkatachaliah Commission Report and 98th amendment departed from.Another contention is that no explanation has been given for departing from the Justice Venkatachaliah Commission Report and the 98th amendment Bill. The Bill negated any possibility of Judges on the National Judicial Commission being outvoted by reason of its composition. It also specifically provided that no person who is not recommended for appointment as a Judge ‘by the Commission’ shall be so appointed by the President..Picture courtesy: Supreme Court of India website
After hitting a few roadblocks, such as Justice Dave’s recusal and objections to Justice Khehar’s presence on the Bench, the NJAC hearings are finally underway in the Supreme Court..A five-judge bench comprising Justice Khehar, Justice Chelameswar, Justice Lokur, Justice Kurian Joseph and Justice Goel are presently hearing arguments from the 10 petitioners challenging the Constitutionality of the NJAC Act..A few weeks back, in a move to hasten the process of appointing judges to the higher judiciary, the Central Government notified the NJAC Act even before the hearings could commence. As and when the NJAC is set up, it will decide who shall be filling up the 346 vacancies that currently exist in the higher judiciary..However, Chief Justice of India HL Dattu recently threw a spanner in the works of the government. He wrote a letter to Prime Minister Narendra Modi saying that he would not participate in proceedings for the selection of the two ‘eminent persons’ of the NJAC before the apex court passes a verdict on the petitions..So what are the questions of law that have been raised in this batch of petitions? What will senior counsels such as Fali Nariman, Mukul Rohatgi, and KK Venugopal be arguing in the course of the hearings?.Before getting into the grounds, here is a table of some of the petitioners and their counsels:.The respondents include the Central Government, 22 states and 2 Union Territories. Some of the lawyers appearing for them include Attorney General Mukul Rohatgi and ASG PS Narasimha for Union of India, KK Venugopal for Madhya Pradesh, and Aryama Sundaram and Arvind Datar for Puducherry..So what are the various grounds raised?.1. Separation of powers & violation of Basic Structure.The argument common to all petitions is that the NJAC will lead to a violation of Article 50 of the Constitution, i.e. the separation of the judiciary from the executive. Furthermore, the enforcement of the NJAC Act would lead to a scenario where the biggest litigant (the government) is appointing the judiciary..Describing this provision as being part of the basic structure of the Constitution, the petitioners have cited Kesavanada Bharati and Indira Gandhi vs. Raj Narain, where it was held that the power to amend the Constitution under Article 368 does not enable Parliament to alter the basic structure of the Constitution..Some, such as senior counsel Raju Ramachandran, have argued that the judgment in Kesavananda was “Constitutionally unsound” because it,.“…it acts as a roadblock to the will of the people. For example, the ‘Basic Structure doctrine’ would come in the way, if we decide to switch from a Parliamentary form of government to a Presidential form of government. But in the context of the present overwhelming majority [of the ruling party in the Parliament] due to which apprehensions have been expressed about the rights of minorities, I have asked myself whether it is time to re-think my own position.”.Will the 5-judge Bench concur?.Another ground for challenging the NJAC is the fact that the Act proposes to dilute the powers of the Chief Justice of India; in a number of constitutional provisions (see box), the words “Chief Justice of India” will be replaced with “NJAC”..Laying emphasis on the importance of the office of the CJI, one of the petitions cites the First Judges case, where it was held,.“In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’ and formed in the manner indicated in the judgment, would have primacy.”.The NJAC Act then, sets aside this very primacy..The violation of the concept of federalism has also been cited; the NJAC Act proposes to annul the Governor’s role in appointing a High Court Judge under Article 217 of the Constitution..2. No primacy to SC judges.The six-member NJAC will comprise 3 Supreme Court judges including the Chief Justice, the law minister and 2 eminent jurists. However, there is a possibility of the CJI and two senior-most Judges of the SC being out-voted by two non-judge Members of NJAC, which effectively means that a situation may arise where judges are appointed by non-judges..3. Judges are most fit to appoint judges.One of the petitions quotes from the Second Judges case, where it was held:.“The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench. The Chief Justice of India and the senior most puisne Judges, by reason of their long tenures on the Supreme Court, are best fitted to achieve this objective.”.In essence, the argument is that judges would be best equipped to evaluate the merit of a potential judge..4. Assessment by ‘eminent persons’ .The ability of the two ‘eminent persons’ to assess an individual whose name has been recommended for elevation has been questioned. An example was given wherein one of the eminent persons/jurists belongs to Delhi, and the question is of the elevation of a judge of the High Court of Kerala to the Supreme Court. It is argued that in such a case, there will be no basis of assessment..5. No criteria for appointment .The criteria of suitability for appointment of Judges to the higher judiciary not been provided for in the impugned 99th Constitution Amendment Act. Moreover, the NJAC Act does not lay down any standard of transparency, which is a sine qua non for appointments to high offices..6. Full-time appointment body required.The petitions also contain grievances against specific provisions of the new laws. For instance, questions about the ability of an ex-officio body like the NJAC have been raised. As one petition states,.“Selecting more than 100 judges of the higher judiciary every year (from amongst thousands of potential candidates) in a rational and fair manner is an onerous task requiring a full-time and not an ex-officio body. Before making a selection, the candidates have to be evaluated for their competence, integrity, judicial temperament and their sensitivity for the concerns of common persons…Having an ex-officio body would lead to arbitrary appointments, which violates Article 14 and 21 of the Constitution of India.”.A body on the lines of the Judicial Appointments Commission (JAC) of the United Kingdom, which is also a full-time body, has been suggested..7. Powers of Parliament to change regulations of NJAC.By moving the power to appoint judges into an Act, Parliament now has an unfettered ability to amend laws and regulations pertaining to functioning of the NJAC. In other words, indirectly modifying the appointment procedure without requiring a constitutional amendment. This, it may be argued, suffers from the vice of excessive delegation..8. Venkatachaliah Commission Report and 98th amendment departed from.Another contention is that no explanation has been given for departing from the Justice Venkatachaliah Commission Report and the 98th amendment Bill. The Bill negated any possibility of Judges on the National Judicial Commission being outvoted by reason of its composition. It also specifically provided that no person who is not recommended for appointment as a Judge ‘by the Commission’ shall be so appointed by the President..Picture courtesy: Supreme Court of India website