Separation of powers: Why Supreme Court struck down the NJAC Act as 'unconstitutional and void' in 2015

The Supreme Court collegium system, headed by a chief justice, currently decides the appointment and transfer of judges.

A fire broke out at Justice Yashwant Varma’s official residence in Delhi on March 14, leading to the recovery of wads of burnt currency. Besides bringing the spotlight on Justice Varma who has denied any involvement in the alleged recovery of cash from his premises, the incident has also reignited scrutiny over the process of appointments to the higher judiciary and the National Judicial Appointments Commission (NJAC) Act brought by the Narendra Modi government in 2014 but struck down by the Supreme Court in 2015.

Referring to the NJAC Act and the cash-at-home row, Vice President and Rajya Sabha Chairman Jagdeep Dhankhar recently said “things would have been different” if the mechanism for judicial appointments had not been struck down by the Supreme Court. Dhankhar also held a meeting with floor leaders of parties to discuss the issue.

What was the NJAC?

After coming to power for the first time in 2014, the Narendra Modi regime passed the NJAC Bill in August of the same year and the Act came into force on April 14, 2015.

According to the Act, the panel would be headed by the Chief Justice of India, with two senior Supreme Court judges representing the judiciary. It would comprise the Law minister and two eminent individuals to be nominated by a committee of the Prime Minister of India, the Chief Justice of India, and the Leader of the Opposition in the House of the People. If there is no Leader of the Opposition, then the leader of the single largest opposition party in the Lower House would be part of the panel.

Almost all the parties in both Houses of Parliament and more than 50 percent of states, including those led by the Congress and the Left, unanimously ratified laws to bring in the NJAC Act. It was aimed at replicating the current collegium system as a method used to appoint judges to the higher judiciary. However,  Rajya Sabha member and senior advocate Ram Jethmalani abstained.

Why did the Supreme Court strike down NJAC?

In 2015, the SC bench in a majority of 4:1 rejected the NJAC Act and the constitutional amendment as “unconstitutional and void”.  “It is difficult to hold that the wisdom of appointment of judges can be shared with the political executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” Justice JS Khehar, the presiding judge on the five-judge Constitution Bench, stated in his individual judgment.

According to the apex court, by taking away the primacy of the judiciary’s power to appoint judges, the NJAC was damaging the basic structure of the Constitution, given that one of its key principles is the separation of powers between the legislature, judiciary and the executive.

“Article 124(2) of the Constitution as originally framed made it mandatory for the President to consult the Chief Justice of India in the appointment of judges,” the court said, while noting that the 99th Constitution Amendment Act, to establish the NJAC, completely did away with this mandatory consultation.

Why was Ram Jethamalani against NJAC Act?

Jethmalani said it would pave the way for appointment of judges who are “pliable and favourable to government”. “It is a fraud on the Constitution. A litigant should not be part of a process for appointment of judges and the government is the biggest litigant in the country,” he said as quoted by Times of India.

“Corrupt politicians always want a corrupt judiciary. We must have an appointment system in which litigants should not have a say.”

However, the veteran lawyer had said the present collegium system for appointment of judges is not perfect. According to him, there was a need to evolve another system in which people from Bar and academic fields were involved.

How did the 2014 Modi regime react to the SC verdict?

In a Facebook post, then Union Finance Minister Arun Jaitley said Indian democracy could not be a “tyranny of the unelected”.

Expressing “personal” views on the verdict in a Facebook post titled ‘The NJAC Judgement — An Alternative View?’, Jaitley said: “The judgment has upheld the primacy of one basic structure — independence of judiciary — but diminished five other basic structures of the Constitution, namely, parliamentary democracy, an elected government, the council of ministers, an elected Prime Minister and the elected leader of the opposition.”

Jaitley said the SC verdict raised several issues in his mind, particularly the fact that “politician bashing seems to be the key ingredient of the judgment” and this ignored the “basic structure of the Constitution” where parliamentary democracy was central and where the will of the people (as represented by elected representatives) was sovereign. He said the judgment was based on the premise that the independence of judiciary would be compromised because of the presence of politicians on the judges appointment commission, that judges thus appointed would feel indebted to the politicians.

What is the current process of appointing judges?

The Supreme Court collegium system, headed by a chief justice, currently decides the appointment and transfer of judges. The forum also consists of four senior-most Supreme Court judges.

The collegium decides the elevation of Chief Justices/Judges of High Court to the Supreme Court, judges of High Courts as Chief Justices and other judges. However, according to the Centre, the opaque nature of the current system is responsible for many judicial vacancies.