NJAC Act violates 'basic structure' of Constitution, Bar bodies tell Supreme Court | Chief Justice of India HL Dattu refuses to be part of panel to select NJAC members, SC told

  30 April 2015 | Place: New Delhi

A day after Chief Justice of India HL Dattu refused to attend meeting to select two members to the NJAC panel, various Bar bodies on Tuesday told the Supreme Court that the validity of new law on appointment of judges cannot be sustained as it violates "basic structure" of the Constitution.

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A day after Chief Justice of India HL Dattu refused to attend meeting to select two members to the NJAC panel, various Bar bodies on Tuesday told the Supreme Court that the validity of new law on appointment of judges cannot be sustained as it violates "basic structure" of the Constitution.

"Basic Structure is violated because the body (National Judicial Appointments Commission-NJAC) sought to be created, does not have the salient features of the body (collegium) substituted," senior advocate Fali S Nariman, appearing for Supreme Court Advocates on Record Association (SCAORA), told a five-judge Constitution bench headed by Justice JS Khehar.
SCAORA, Bar Association of India (BAI) and few others are challenging validity of the National Judicial Appointments Commission Act, 2014 and enabling Constitution (99th amendment) Act 2014.
The noted jurist, citing judgements, told the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, that in the NJAC, no "weightage or primacy" has been given to the views of the CJI in selection of judges and moreover, "the question here is as to whether independence of judiciary is part of the basic structure".

He then referred to the constitution of the six-member panel, comprising three senior-most SC judges including the CJI, the Union Law Minister and two eminent citizens and said, "who will decide" if the panel gets divided vertically on the question of appointment of a judge.
The primacy of views of judiciary is not there, he said. "A Chief Justice of a High Court is not a participant of the NJAC but can only send his recommendation to the NJAC", Nariman said, adding that it is a major flaw of the new law.
"Preponderance" of views of three senior most judges of the apex court, as recommended by the Venkatachaliah panel, has not been not provided for by the NJAC Act, he said.
Nariman was supported by senior advocate Anil Divan, appearing for BAI, who said, "The manner, it (NJAC) has been constituted, the Act has altered the basic structure of the Constitution."
"The direct and inevitable" effect of these two laws on independence of judiciary has to be looked into, he said. "We will examine the enactments as they stand today," the bench said.

Chief Justice of India HL Dattu refuses to be part of panel to select NJAC members, SC told

The three-member panel comprises Chief Justice of India, Prime Minister and the Leader of Opposition, who are authorised to select and appoint two eminent persons in the six member NJAC for appointment of judges to higher judiciary.

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In a new twist, Chief Justice of India H L Dattu has refused to participate in a three-member panel for selecting two eminent persons in the six-member National Judicial Appointments Commission (NJAC) on whose validity a constitution bench began hearings today.
The five-judge constitution bench, headed by Justice J S Khehar, which is hearing the issue of constitutional validity of the new law on appointment of judges to higher judiciary, was told by Attorney General Mukul Rohatgi that Dattu has written to Prime Minister Narendra Modi that he would not participate in the meeting of the panel till the matter is decided by the apex court.

The three-member panel comprises Chief Justice of India, Prime Minister and the Leader of Opposition, who are authorised to select and appoint two eminent persons in the six member NJAC for appointment of judges to higher judiciary.

When it was brought to the notice of the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, it heard the views of various senior advocates on how to proceed with the matter taking into account that in the immediate future there would be the eventuality of appointment of existing additional judges of the high courts whose tenures are coming to an end.

After taking note of their views, the judges retired to their chambers and assembled after 15 minutes.
Justice Khehar said that the bench has decided to continue with the hearing on the merits of the case and if needed it will pass an interim order.
"A consensus has emerged that we will continue with the merits of the case and when it is necessary we will pass an interim order," the bench said.
The AG submitted that it is mandatory for the CJI to be the part of the panel in selection and appointment of eminent persons in the six-member commission.

He said a direction should be passed for the CJI to participate in the meeting.
However, his view was not shared by senior advocate Fali S Nariman, who is appearing for Supreme Court Advocates on Record Association (SCAORA), said that if the CJI is not participating, the bench can direct others to meet and participate.