Five-judge Supreme Court bench to decide validity of NJAC

A three-judge bench of the Supreme Court referred writ petitions challenging National Judicial Appointments Commission to a constitution bench

Uncertainty over implementation of the National Judicial Appointments Commission Act is set to continue for a long time, as a three-judge bench of the Supreme Court on Tuesday referred the issue to a Constitution bench. Several petitions have challenged the Act, which would replace the present collegium of senior judges with a commission to appoint judges of the Supreme Court and high courts.

The President has not notified the law and the government has indicated it was awaiting the outcome of the case.  There is no stay of the law. The maintainability of the petitions has to be decided by the larger bench. The larger bench, to be constituted by the Chief Justice, would initially consist of five judges. However, there are three judgments of still larger Constitution benches which rule the field. Therefore, the new bench could consist of 11 or more judges.

The first judgment was delivered in 1982 by a seven-judge bench, upholding the primacy of the executive in judicial appointments and transfers. However, that ruling was overruled by a nine-judge bench in 1993, and a collegium was set up. That decision was re-affirmed by another bench in 1998.

Since the collegium system was the focus of intense controversy,  the government drafted a law transferring the function of appointments to a six-member commission. It would consist of three from the judiciary, the law minister and two “eminent” persons chosen by a panel which consist of the chief justice, the prime minister and the leader of the opposition.

One of the main challenges is to the choice of eminent persons who could veto the decision of the commission. Senior counsel F S Nariman and Anil Divan had further argued last month before a bench headed by judge Anil Dave that the Act was passed before the necessary amendment to the Constitution. Therefore, it was not valid even if the President notified it.

Attorney-General Mukul Rohatgi, appearing for the Centre, had contended that the petitions were premature, as the law has not come into force and the presidential notification is yet to be issued. He had further submitted that the collegium system had been an utter failure. The Supreme Court Bar Association has supported him, while some other lawyers’ associations have opposed the law as it stands now.