The 5 Judge Bench of the Supreme Court recently struck down the NJAC act and the 99th Amendment and thus held it unconstitutional. National Judicial Appointment Commission Bill was introduced in the Lok Sabha by the then Minister of Law and Justice Shri. Ravi Shankar Prasad.
The Bill got an assent by the President and thus became an Act, popularly called the National Judicial Appointment Commission Act 2014. The object behind this Act was to promote transparency and fairness in the appointment and the transfer of the High Court and Supreme Court Judges. This Act was introduced to replace the collegium system. The collegium system evolved from the 3 judges' case also called the S.P. Gupta's case. The NJAC Act could not be implemented as there was a lot of criticism and various petitions were filed by renowned advocates against the said Act saying that the Act interfered with the independence of judiciary which constituted the basic structure of democracy.
The NJAC Act brought with it the amendments to the Constitution namely 124A, 124B, 124C and the articles before enactment which were 124 and 217 of the Constitution that dealt with the appointment of Supreme Court Judges and High Court Judges were repealed but after this judgement they have been re-legislated. According to the NJAC Act, the committee of 6 people will be constituted who are, the Chief Justice of India, Law Minister, two senior most Supreme Court Judges and lastly 2 eminent persons who are to be chosen by Prime Minister, CJI and leader of opposition. Section 5 and 6 of the NJAC act define the procedure to choose the Supreme Court and High Court Judges. The NJAC was introduced to replace the collegium system, where the judges of the Supreme Court and the High Court were selected for transfer and appointment by the committee constituting the Chief Justice of India and 4 senior judges of the Supreme Court. The abovementioned Act was introduced because it was observed that the collegium system was inadequate and there was a lot of corruption going in transfer and appointment of Judges.
The judgement given by 5 Judge Bench of the Supreme Court is correct, as it is true that there are 3 different organs of the government and separate powers are delegated to them for them to work accordingly without any clashes, and this vogue has been there in practice since the enforcement of the Constitution. But, if suddenly an Act comes which breaks the long going custom, it will in all respects disturb the working as there will be clashes in the work. In the present case, with the coming of the NJAC Act it was highly evident that the executive will be involved in work of judiciary. This aspect was also mentioned in the judgment, and it was said, the NJAC Act brings in a lot of political and executive interference in the work of the judiciary. The separation of powers among three organs is deemed as the basic structure of constitution as told in the case of Keshavananda Bharati Vs State of Kerala which does not exactly define the basic structure but says that it is decided on case to case basis and it remain status quo. This case told that Parliament can amend anything in the Constitution, but the concept of the basic structure has restricted Parliament to make important alterations in the Constitution. Through these amendments brought by NJAC Act, the role of the Chief Justice has also been reduced and has been substituted by the NJAC committee. The introduction of 124A is unconstitutional because in the 2nd judges case it was held that primacy of CJI comes within the basic structure of the Constitution and here the Parliament amended the basic structure and thus made a substantial alteration in the Constitution. Thus, the judgement holds good as it revives the collegium system and also due to a fact that members in the judiciary are the best people to know who are worthy of being transferred and appointed to the post of judges. An example of this can be, if there are a group of 5 people from which a person has to be promoted to higher post so there is a need of a person who already knows the existing people, and a totally different stranger cannot be called to pick a person for promotion. In the same way the judiciary is a family of judges and they only know about the intricacies of judicial system.
The other aspects due to which the NJAC Act seems insufficient are that the word eminent is not defined and the procedure to choose the eminent people is also not mentioned thereby leaving a lot of scope for filling the gap. Thus, the Act is rightly held unconstitutional and the doctrine of revival has been applied which led to the collegium system being revived. Just like there is a quote, “ Too many cooks spoil the broth” therefore it is necessary that each organ of the government should work accordingly and independently and only then they will be able to produce better results.
It would be a mistake to replace a bad system with another bad system instead a time saving method can be to improve the existing system. Some recommendations for improving the system can be, that the Act can be brought under purview of RTI so any judge who gets rejected or does not get selected can get to know the reason of the rejection.