Supreme Court strikes down NJAC Act (99th Constitutional Amendment Act)

The Supreme Court, recently, declared that the National Judicial Appointment Commission Act was ultra vires to the provisions of the constitution. A five-judge Constitution Bench ruled with a 4:1 majority that judges' appointment shall continue to be made by the Collegium System which consists of the Chief Justice of India and the four senior-most judges of the Supreme Court. The Bench underlined that the NJAC sought to interfere with the independence of the judiciary, of which appointment of judges and primacy of judiciary in such appointments, were 'indispensable' features. By striking down the 99th Constitutional Amendment Act, the Supreme Court has raised a lot of eyebrows, with the country divided over whether the move has been in the best interests of the society or not.
To read more about the composition and working of the NJAC visit the following link. http://zamanexplains.blogspot.in/2015/04/independence-of-judiciary-in-danger.html

History:

• First Judges Case (1982) - Supreme Court held that in matters of appointment of judges, the government must consult the Chief Justice and other judges of the Supreme Court, but the consultation does not mean concurrence. In short, the advice of the judges was not binding on the government.
• Second Judges Case (1993) - Supreme Court reversed its earlier ruling and made the advice of the CJI (Chief justice of India), binding on the President, in matters of appointment of judges. But CJI had to consult his two senior-most colleagues.
• Third Judges Case (1998) - Supreme Court opined that the consultation process adopted by CJI requires 'consultation of plurality of judges'. This paved the way for the Collegium System for appointment of judges. The CJI was to consult a collegium of four senior-most judges of the SC and even if two judges gave an adverse opinion, the recommendation to the government would not be made.

Ever since then, the Collegium System has been followed to make judicial appointments to the Supreme Court and the High Courts. But the Parliament passed the NJAC bill and also got it ratified in twenty State Legislative Assemblies, thus putting an end to the Collegium System.

Views in support of the ruling:

• Basic structure of the Constitution was violated by the Act, as it encroached upon 'Independence of Judiciary'. As per the Supreme Court, the composition of the NJAC was flawed. The presence of the Union Law Minister and two eminent experts, in the six member NJAC and the two member veto provisions seemed to violate the 'Primacy of the Judiciary'. 
• The Constitution also directs State to separate the Executive from the Judiciary but the inclusion of the Union Law Minister in the NJAC went against this provision.
• The government is the biggest litigant before the courts. India is one of the few countries where actions of political executive are brought before the judiciary in public interest litigations. Then how can judges appointed by the government be expected to be neutral while judging a case.       

Voices of Dissent:
The government and different sections of the society has expressed disappointment with the ruling.

• The government thinks that the Supreme Court is ignoring the will of the people of this country as the bill had been passed by both the houses of the Parliament and ratified by most of the state assemblies.
• The Supreme Court has made the assumption that 'primacy of the judiciary' is indispensable for 'independence of judiciary'. The Supreme Court felt that the composition of the NJAC and the veto provisions would reduce the 'primacy of the judiciary'. But there are other ways to protect the 'independence of the judiciary'.
• Supreme Court feared that the 'two eminent persons' in the NJAC would be political appointees, but they were to be selected by a panel which consisted of the CJI, the Prime Minister and the Leader of Opposition, which did not leave much room for favoritism.     

Although the NJAC Act has been struck down and the Collegium system revived, the Supreme Court has invited the government to propose and discuss theories which will improve the Collegium system and make it more transparent, efficient and accountable.