Constitution (Ninety-Ninth Amendment) Act and the NJAC Act declared as unconstitutional

Court: A major breakthrough was achieved in the controversy
surrounding the validity of the National Judicial Appointments Commission
(NJAC) when the Constitution Bench comprising of J.S. Khehar, M.B. Lokur,
Kurian Joseph, A.K. Goel and J. Chelameshwar, JJ., with a ratio of 4:1 declared
the 99th Amendment to the Constitution and the subsequent National
Judicial Appointments Commission Act, 2014 to be void and unconstitutional. The
Majority also held that the “Collegium System” of appointment of judges is to
be made operative once again after this decision. However the Bench left the
discussion open to consider the introduction of appropriate measures for an
improved working of the Collegium system.

In the present
case where the constitution of the NJAC for appointment of Supreme Court and
High Court Judges was under the scanner, J.S. Khehar, M.B. Lokur, Kurian Joseph
and A.K. Goel, JJ., decided in favour of declaring the NJAC as
unconstitutional,   whereas  J. Chelameshwar, J remained in dissent.

As per the
majority, the issue of appointment of Judges has direct nexus with the
independence of judiciary; therefore the contention by the Government to the
contrary is completely baseless. It was further observed that the issue of
appointment and transfer of judges is a matter of great significance which
cannot be left to the moral strength of the individuals and where judicial
primacy is a necessity, thus acceptance of any alternate mechanism for appointment
is out of question. Articles 124A (1)(a) and (b) as introduced by the
Amendment, does not ensure judicial primacy in the matter of appointment and
transfer, therefore it encroaches upon the independence of judiciary thereby
violating the basic structure of the Constitution.       

According to J. Chelameshwar,
J. the questions before the Court were that whether the Collegium system is an
established mechanism for appointment or the Parliament has any authority to
create another alternative for the same. Agreeing with the contention of
Attorney General Mukul Rohatgi, Chelameshwar, J. observed that the 99th
Amendment does not abrogate the basic structure of the Constitution, as it does
not invest the absolute power to the President to appoint or transfer judges.
Furthermore the NJAC Act ensures that no unworthy candidate shall be appointed
as a Judge as long as 2 members from the Commission view the candidate to be
incompetent. He further added that the presence of the Law Minster does not in
anyway undermine the independence of Judiciary but his exclusion would severely
undermine the say of a democratic government chosen by the people and would be
destructive to the basic feature of checks and balances. [SCORA v. Union
of India, 2015 SCC OnLine SC 964] 
Source: Legal news India

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