NJAC striked down by Supreme Court.

In a historic ruling that the primacy of the judiciary in judges’ appointments was embedded in the basic structure of the Constitution, the Supreme Court today declared unconstitutional an amendment to validate the National Judicial Appointments Commission (NJAC) Act, which had contemplated a significant role for the executive in appointing judges in the higher judiciary.

Effectively sealing the fate of the proposed system, which was unanimously passed by both Houses of parliament, a five-judge Constitution Bench ruled with a 4:1 majority that judges’ appointments shall continue to be made by the Collegium system in which the Chief Justice of India will have “the last word”.

The 20-year-old collegium system prescribes appointment of judges by a panel comprising five seniormost judges of the Supreme Court and high courts, with the power to confirm appointments despite resistance, if any, from the government.

The Bench, led by Justice J S Khehar, held as “ultra vires” the 99th Constitutional Amendment Act and the NJAC Act, which had proposed that appointments be done by a six-member body, headed by the Chief Justice of India, and including two seniormost SC judges, the Union Law Minister and two “eminent” persons. These two would be selected by a panel including the Prime Minister, the CJI and the leader of the largest Opposition party in the Lok Sabha.

It is after 35 years that a constitutional amendment has been quashed by the top court. The Bench has fixed the matter for November 3 to examine suggestions to be made by the government, petitioners and other stakeholders.

On Friday, the Bench underlined that the NJAC sought to interfere with the independence of the judiciary, of which appointment of judges and primacy of the judiciary in making such appointments were “indispensable” features.

Justices Madan B Lokur, Kurian Joseph and Adarsh K Goel wrote separate judgments supporting Justice Khehar’s finding that “primacy of the judiciary has been rendered a further devastating blow by making it extremely fragile” by the introduction of NJAC. “There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary,” they added.

However, Justice J Chelemaswar, writing a dissenting verdict, held that ever-rising pendency of cases warranted a “comprehensive reform of the system” and upheld the validity of the constitutional amendment. Differing with the majority, he said that primacy of the CJI is not a basic structure of the Constitution and judiciary’s power over appointments was “not the only means for the establishment of an independent and efficient judiciary.”

Criticising the collegium system, Justice Chelameswar said that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”. His views on the collegium received partial support from the other judges, who noted that collegium system may need certain improvements.

But Justice Khehar held that “the functioning of the “collegium system” may well not be as bad as it is shown to be”.

Attorney General Mukul Rohatgi, who led the case on behalf of the Centre, called it a “flawed” verdict and said the Bench overruled the “will of the people” as represented by the parliament.

Rohatgi expressed doubts on whether this would be a fit case for seeking a review given the fact that detailed reasons have been recorded in the 1,030-page judgment. He added that the parliament would now need to take a call if it intends to bring a new law once again.

As he was about to begin reading out the operative part of the verdict in the packed court room, Justice Khehar said: “Collegium or no collegium, I would like to share with you that I am with everyone on this bench and there was enough collegiality among us.”

Justice Khehar then said the common order, signed jointly by all the five judges, reads that the plea for reference of this case to a large bench of 11 judges has been rejected and that the constitutional amendment along with the Act have been declared to be “unconstitutional and void.”

The most lengthy judgment on the merits of NJAC — more than 300 pages — was authored by Justice Lokur whereas Justice Joseph wrote only 17 pages while adding that he decided not to supplant a detailed judgment since that may cause “unnecessary multiplication.”

The majority view was that the amendment to constitute the NJAC sought to trample upon the primacy of the judiciary and the role of the CJI, who would be “reduced to an individual figure from an institutional head” in the panel that has the Law Minister and two “eminent persons,” as its other members.

“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,” said Justice Khehar.

His views were supported by Justice Lokur, who shot down the AG’s submission to “give NJAC a try”. “If during experimentation, the independence of the judiciary is lost, it is gone forever and cannot be regained by simply concluding that the loss of independence is a failed experiment. The independence of the judiciary is not physical but metaphysical. The independence of the judiciary is not like plasticine that it can be moulded any which way,” he stated.

Describing the inclusion of the Law Minister in the process of appointing judges as “questionable,” the court was categorical that “it needs to be ensured that the political-executive dispensation has the least nexus, with the process of finalisation of appointments of judges to the higher judiciary.”

The judges held that the appointment of judges, coupled with primacy of judiciary and the CJI, was part of the basic structure of the Constitution and that the parliament had no power to tinker with this structural distribution.

“…primacy of judiciary and limited role of the Executive in appointment of judges is part of the basic structure of the Constitution. The primacy of judiciary is in initiating a proposal and finalising the same. The CJI has the last word in the matter,” said the court.

Rejecting the Centre’s argument that the NJAC represented the will of the people, Justice Goel noted that “the will of the people is the Constitution while the Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution”.