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The Big Picture – CJI declines to join NJAC Committee: Implications?

The Big Picture – CJI declines to join NJAC Committee: Implications?

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Summary:

The decision of the Chief Justice of India to reject the invitation of the Prime Minister of India to

attend a meeting to choose two eminent persons to be part of the National Judicial

Appointments Commission has led to what according to some is a constitutional crisis. The

Chief Justice in a letter to Prime Minster has made it clear that it is neither appropriate nor

desirable for him to attend the meeting till the Supreme Court decides the validity of the

National Judicial Appointments Act. A five Judge bench of the Supreme Court headed by Justice

Keher is hearing a batch of petitions questioning the validity of the government’s notification of

the commission. The law was notified recently after the parliament passed it last year and 20

states had ratified it.

Article 124A(1) stipulates the constitution of the NJAC. It consists of the CJI, two judges of the

SC next to the CJI in seniority, the Law Minister and two eminent persons who are nominated

by a committee consisting of the PM, CJI and Leader of Opposition (or leader of single largest

Opposition party in the Lok Sabha). Therefore, the CJI is not only a member of the NJAC for

appointing and transferring judges of higher courts, he is also a member of a committee which

selects the two eminent persons who then join the rest in appointing/transferring judges.

The decision of the Chief Justice to stay off the meeting may lead to delay in appointment of

several Judges including Chief Justices of 7 High Courts. There are also many additional judges

whose terms are coming to an end. The important question being raised is whether the Chief

Justice of India has done the right thing by refusing to attend the meeting or not?. Without the

crucial presence of the Chief Justice, the high-power committee also comprising the Prime

Minister and the Leader of the single largest party in the Lok Sabha will be handicapped in

selecting the two ’eminent persons’ as members of the six-member NJAC.

In April 2015, the apex court had said that NJAC will only deal with appointment of existing

additional judges of high courts, whose tenures are ending during pendency of the controversy,

after it was assured by the AG that commission will not appoint judges to the higher judiciary

and will move the court in such an eventuality. The NJAC was supposed to act as an interim

mechanism for considering the confirmation of existing additional high court judges whose

tenures would end during the pendency of the Constitution Bench’s hearing on NJAC law’s

constitutionality. The CJI’s letter topples this assurance given to the bench.

The attorney general submitted that it is mandatory for the chief justice to be the part of the

panel that is to select and appoint eminent persons to the NJAC. He said a direction should be

passed for the chief justice to participate in the meeting. But senior advocates have said that if

the CJI is not participating, the bench can direct others to meet and participate. They also say

that the bench has to see if a case for staying the operation of the NJAC Act is made out or not,

on the face of it. Some experts have also said that the bench can continue with the hearing.

The court has also said that senior-most judge of the apex court becoming the chief justice of

India upon the retirement of the incumbent was part of the independence of judiciary which in

turn was the part of the basic structure of the constitution. The court noted that in India, they

have accepted seniority as the basis of elevation and not just merit and also expressed

apprehension that in the absence of seniority not being a criterion, there may be a situation

where a judge down the line uses influence for his way to the top.

It is possible that the Supreme Court bench may find parts of the NJAC law impinging on the

independence of the judiciary, and could strike these parts down. But the collegium system

stands abolished anyway unless the bench decides that it will be restored in defiance of the will

of parliament and the people. But this is unlikely for the objective fact is that the collegium

system itself was never part of the original constitutional mandate, which only required the

President (ie, the government) to consult the CJI and appoint judges to the higher courts. It was

the collegium that was truly unconstitutional. The NJAC is said to restore the intent of the

original constitutional provisions by giving the executive some say in the appointment of

judges.