Supreme Court Strikes Down NJAC Act and 99th Constitutional Amendment

Background: The NJAC and the Challenge

The Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 sought to replace the Collegium system for appointing judges to the Supreme Court and High Courts. The NJAC proposed a six-member body comprising the Chief Justice of India, two senior-most Supreme Court judges, the Union Minister of Law and Justice, and two 'eminent persons' nominated by a committee including the Prime Minister, Leader of Opposition, and Chief Justice of India.

The Supreme Court Advocates-on-Record Association challenged the constitutional validity of these provisions, arguing that they compromised the independence of the judiciary and violated the basic structure doctrine. The court was called upon to decide whether the NJAC framework upheld the principles of judicial primacy, separation of powers, and independence of the judiciary.

Legal Questions Before the Court

• Did the 99th Constitutional Amendment and the NJAC Act violate the basic structure doctrine?
• Could the inclusion of the Union Minister of Law and Justice and two 'eminent persons' in the NJAC be reconciled with judicial independence?
• Were the provisions governing veto powers, quorum, and criteria for appointments constitutionally valid?

The court also examined whether the NJAC framework adequately preserved the judiciary's primacy in decision-making and whether it introduced safeguards against executive overreach.

Judicial Analysis: Independence and Primacy

Justice Khehar, writing for the majority, emphasized that judicial independence is an inviolable element of the Constitution's basic structure. The judgment noted that the NJAC diluted judicial primacy by empowering two 'eminent persons' and the Union Minister to veto recommendations, even if unanimously approved by the judicial members.

The court observed: "Primacy of the judiciary would not be considered to have been sustained, merely by ensuring that the judicial component in the membership of the NJAC was sufficiently capable to reject the candidature of an unworthy nominee." The inclusion of non-judicial members with veto powers was deemed "outright obnoxious" to judicial independence.

Further, the absence of defined qualifications for 'eminent persons' and the potential for executive influence in their nomination was held to undermine the integrity of the appointment process. Articles 124A(1)(c) and 124A(1)(d) were struck down for violating the principles of separation of powers and judicial independence.

Procedural and Evidentiary Observations

The court addressed the procedural implications of the NJAC's functioning, including quorum requirements and veto powers. It held that Sections 5(2) and 6(6) of the NJAC Act, which allowed any two members to veto recommendations, breached judicial primacy. Additionally, the court found that the lack of a prescribed quorum for NJAC meetings further compromised the decision-making process.

On evidentiary grounds, the court scrutinized the Attorney General's argument that the term 'fit' under Section 5(1) referred solely to mental and physical fitness. While the court accepted this narrow interpretation, it cautioned against ambiguity that could enable executive interference in judicial appointments.

Implications for Advocates and Future Appointments

For practitioners, the judgment restores the Collegium system as the operative framework for judicial appointments. Advocates handling matters related to judicial independence should note the court's reaffirmation of the basic structure doctrine as a bulwark against executive overreach.

The judgment also signals heightened scrutiny of legislative attempts to alter the judiciary's role in appointments. Advocates should be prepared to challenge any future frameworks that fail to adequately safeguard judicial primacy and independence. Additionally, the court's emphasis on procedural safeguards may influence how similar commissions are structured in other contexts.

Unresolved Questions and Limits of the Judgment

While the judgment decisively struck down the NJAC framework, it left open questions about improving the Collegium system. The court acknowledged the need for reforms to enhance transparency and accountability but deferred these considerations to a later date.

The judgment also did not elaborate on the potential role of civil society in judicial appointments, noting that India's 'organic development of civil society' is not yet sufficiently evolved. This leaves room for future debate on whether non-judicial inputs can be incorporated without compromising independence.

Source judgment: RECORD A ASSOCIATION AND ANOTHER v. UNION OF INDIA · Bench: Jagdish Singh Khehar, Adarsh Kumar Goel