The Supreme Court will hear on Monday four petitions challenging the 121st constitutional amendment that replaced the collegium system for appointment of judges in higher judiciary and proposed a new mechanism under National Judicial Appointment Commission (NJAC).
Four PILs have been filed in the Supreme Court for declaring the setting up of NJAC as unconstitutional, days after the Rajya Sabha had on August 14 approved with overwhelming majority the 121st Constitution Amendment Bill along with the NJAC bill. Lok Sabha had given its nod to the measures on August 13.
Seeking the quashing of the National Judicial Appointments Commission Bill, 2014 and the Constitution (One Hundred And Twenty First Amendment) Bill, 2014, the petitions have sought a declaration that they are “arbitrary, unconstitutional, and deface/defile/damage basic structure/feature of India’s constitution.”
The PILs have been filed by senior counsel and former Additional Solicitor General Bishwajit Bhattacharya, advocates RK Kapoor and Manohar Lal Sharma and Supreme Court Advocates-on-Record Association.
Bhattacharyya in his PIL said that both the National Judicial Appointment Commission and the constitutional amendment paving way for it (NJAC) were in violation of basic structure of the constitution which was absolute and unalterable and thus were unconstitutional.
“Doctrine of separation of power and the independence of the judiciary are basic immutable features of India’s constitution. These basic features (structure) of the constitution cannot be abridged or abrogated by the either the executive or the legislature,” the PIL read.
The two bills “make frontal attack on the independence of the judiciary and on the doctrine of separation of power, both basic features of India’s constitution. Such violence done to the basic structure of India’s constitution is reminiscent of the dark days of emergency imposed on June 12, 1975,” the PIL stated. Bhattacharya has contended that the Constitution empowers the Chief Justice of India to take a decision in every appointment of Supreme Court and high court judges and in every transfer of judges from one high court to another.
“This power is now being shifted to the NJAC and the very possibility of the CJI along with two senior-most judges of the SC being vetoed by the executive would be destructive of the independence of the judiciary and the doctrine of separation of power, both basic features of India’s Constitution," he said.
The lawyers further submitted that “the Constitution itself recognises a clear demarcation separating the judiciary from the executive under Article 50 of the Constitution which is the underlying