The NDA government suffered a huge setback today with the Supreme Court striking down as unconstitutional the NJAC Act which gives a major role to the executive in appointing judges to higher judiciary.
The ambitious National Judicial Appointments Commission (NJAC) Act, 2014 to replace the 22-year-old collegium system of judges appointing judges was struck down by a five-judge Constitution Bench, setting the stage for a potential confrontation between the judiciary and the government.
Law Minister D V Sadananda Gowda expressed "surprise" over the verdict, which gave a new lease of life to the replaced collegium system by "declaring it as operative".
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He said the next course of action will be decided after consultations with Prime Minister Narendra Modi and Cabinet colleagues.
Attorney General Mukul Rohatgi also said the collegium system, which became re-operational with today's verdict, is not found in the Constitution and is not appropriate as it is an "opaque" system.
The operative portion of the 1,030-page verdict was pronounced in the packed courtroom with Justices J S Khehar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel holding as unconstitutional and void both the Constitution (Ninety-ninth Amendment) Act, 2014 and the NJAC Act.
However, Justice J Chelameswar upheld the validity of the Constitution (Ninety-ninth Amendment) Act and gave his reasons for it but said "in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the ACT (NJAC).
The final court order signed by the five judges said: "The prayer for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases of 1993 and 1998 respectively is rejected.
"The Constitution (Ninety-ninth Amendment) Act, 2014 is declared unconstitutional and void.
"The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void.
"The system of appointment of Judges to the Supreme Court, and Chief Justices and Judges to the High Courts; and transfer of Chief Justices and Judges of High Courts from one High Court, to another, as existing prior to the Constitution (Ninety-ninth Amendment) Act, 2014 (called the "collegium system"), is declared to be operative," the bench said.
It further said, "to consider introduction of appropriate measures, if any, for an improved working of the 'collegium system', the matter is listed on November 3.
The NJAC was perceived by some in the legal fraternity as an attempt to interfere with the independence of judiciary.
