The government suffered a major setback on Friday when the Supreme Court struck down a new law that replaced the opaque collegium system with a panel in which the executive was to have a say in judicial appointments, saying it eroded judicial independence.
A five-judge bench headed by Justice JS Kehar declared the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act unconstitutional and revived the 22-year old collegium system, putting the judiciary on a collision course with Parliament and the government.
Law Minister DV Sadananda Gowda expressed “surprise” over the verdict and said the next course of action will be decided after consultations with Prime Minister Narendra Modi and Cabinet colleagues.
The government has the option of filing a review petition or going in for a fresh law to reverse the SC verdict.
“It had 100 per cent support of the people. The will of the people can be represented through Parliament, through the legislature only, it cannot be brought to the notice of the whole world by some other means,” Gowda said.
The Congress, which had supported the Modi government’s constitution amendment bill to set up the NJAC, was guarded in its reaction. Party chief spokesperson Randeep Singh Surjewala said the existing collegium system is “shrouded in secrecy and over confidentiality”.
However, he was quick to say that the party “respected the judgment on the NJAC”. Taking note of the questions raised over the functioning of the collegium system, the bench – also comprising J Chelameswar, MB Lokur, Kurien Joseph and Adarsh Kumar Goel -- invited suggestions from senior members of the bar on how to improve it and fixed November 3 to hear them.
“Some of you had suggested making it more transparent, we have decided to hear the matter further,” Justice Kehar told eminent jurists present in the packed courtroom.
Justices Chelameswar and Joseph criticised the collegium system but disapproved of the way the government wanted to change the procedure.
All the five judges wrote separate judgments that ran into 1,030 pages. Justice Chelameswar concurred with the majority view to scrap the law but differed on why the amendment should not be struck down.
Under the collegium system, only the top five SC judges cleared appointments. The government had attempted to set up the NJAC to make it broad-based and bring in transparency in the appointment of judges.
The six-member NJAC was to be headed by the CJI and comprised two senior-most SC judges, the Union law minister and two eminent persons to be selected by a panel of the PM,CJI and leader of the opposition. Any two members of the NJAC could veto an appointment.
The SC faulted the presence of the law minister in the panel, saying a judge appointed with his support may not be able to resist a plea of conflict of interest by a litigant in a matter when the executive has an adversarial role. The government is the biggest litigant in courts.
The SC also termed the inclusion of eminent persons in the selection panel as “absurd”. It rejected the government’s submission that they would be able to infuse inputs hitherto not available in the prevailing selection process. The law was vague on the definition of eminent persons, it said.
“The sensitivity of selecting judges is so enormous, and the consequences of making inappropriate appointments so dangerous, that if those involved in the process of selection and appointment of Judges to the higher judiciary, make wrongful selections, it may well lead the nation into a chaos of sorts,” the court said.
Dismissing the government’s comparison with the system prevailing in other countries, the bench said it would be imprudent to ape them. It clarified the court did not undermine Parliament’s power to provide an alternative procedure for the selection of judges, so long as the attributes of “separation of powers” and “independence of judiciary” – the core components of basic structure – were maintained.