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SC axes NJAC, government calls it attack on parliament

New Delhi : The Supreme Court on Friday struck down the NJAC Act and opted for the collegium system for appointment of judges to the higher judiciary, prompting the government to say that the apex court has gone above the parliament and people’s will.

In a “collective order”, the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel said the 99th amendment and the National Judicial Appointments Commissions Act were “unconstitutional and void”.

Justice Khehar said the NJAC intruded upon the independence of judiciary. “Its composition infringed upon the primacy of judiciary in judicial appointments.”

In a separate judgment, Justice Khehar said the presence of the chief justice and two senior most judges immediately after him in the six-member NJAC, now been axed, was “insufficient to preserve the primacy of the judiciary in the selection and appointment of judges to the higher judiciary”, including their transfer from one high court to another.

He said the provision that provides for the presence of the union law minister in the NJAC as an ex-officio member was “ultra vires” of the constitution as it “impinges upon the principles of independence of the judiciary” as well as “separation of powers”.

“In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014, is liable to be set aside.”

The government called the ruling a setback to parliamentary sovereignty.

“While upholding very dearly the principle of independence of judiciary, I regret to say that parliamentary sovereignty has received a setback,” said Communications and IT Minister Ravi Shankar Prasad.

The minister, a lawyer by profession and a former law minister, said the NJAC “was a part of judicial reforms that was exercised after deep consideration”.

“We will go through the judgment and come out with a structured response,” Prasad told reporters.

Earlier, Law Minister Sadanand Gowda said he will go through the text in detail and consult Prime Minister Narendra Modi, legal experts and others.

The minister insisted that the act represented the will of the people as it was backed by all the members in the Lok Sabha and Rajya Sabha.

Legal experts, however, said that although the NJAC was against the constitution, the collegium system of appointing judges was not flawless.

“I am not saying this system is flawless… This has its own drawbacks. But between the two evils, this is lesser evil,” renowned advocate Kamini Jaiswal said, referring to the collegium system.

Former chief justice Altamas Kabir said he was always against the NJAC. “It goes against the basic features of our constitution.”

The Congress said the ruling should not be viewed as a tussle between the judiciary and parliament.

“Instead of looking backward, we must look forward to address the issue in hand,” Congress spokesperson Randeep Singh Surjewala said.

“Under no circumstances should elements within or outside the government venture into an atmosphere of confrontation between parliament and judiciary.”

Delhi’s ruling Aam Aadmi Party hailed the ruling. “AAP is of the firm view that independence of the judiciary and a transpraent system for the appointment of judges are of equal importance, and are interlinked.”

The constitution amendment and the NJAC Act were brought to replace the 1993 collegium system for the appointment of judges to the Supreme Court and high courts but Friday’s verdict has restored the latter.

The court rejected the prayer by the government for referring the matter to a larger bench for reconsideration of second judges (1993) and the third judges (1998) that had put in place the collegium system.

Hearing for the same will take place on November 3.