Why NJAC was struck down by the Court

• The recent attacks on the collegium system and the Supreme Court are disconcerting as they come from the Law Minister and the Vice-President.
• The collegium system has been criticised in the past and so has the SC for having struck down the 99th constitutional amendment that created the NJAC.

Reasons for striking down of the NJAC Act

• Poor drafting of NJAC Act, 2014
• Would have collapsed under its own contradictions.
• Stakeholders argued that they had no objection to NJAC replacing collegium if judges were in a clear majority in the Commission.
• But the Govt refused to relent and the 99th amendment was eventually struck down as being violative of the basic structure.
• Unworkable appointment process
• Article 124A - NJAC had an even 6 members- Chairperson, CJI, had no casting vote.
• In case of a tie → deadlock → no solution to the problem .
• No clearly defined “eminent person”
• CJI and the next two senior judges represented the judiciary.
• Law Minister and two “eminent persons” were the other three.
• But, to select SC or HC judges, the eminent person needed no connection with the law.
• Riddled with contradictions and absurdities
• Section 5(1): required NJAC to recommend the senior-most judge of SC as the Chief Justice of India “if he is considered fit to hold the office”.
  • 99th Amendment or NJAC Act has no prescribed criteria of what constitutes fitness to hold office.
  • No grounds for declaring the seniormost judge“unfit” mentioned
• Veto power: No recommendation could be made by the NJAC if any two of the six members disagreed.
  • Would have frustrated the appointment process and enabled the executive to completely dominate the judiciary.
• Bizarre selection procedure for the high court judges
• The Chief Justice and two senior-most judges of a HC had to nominate persons to NJAC for appointment as HC judges.
• Simultaneously, NJAC could also nominate persons for appointment as HC Judges.
• What would happen if the two sets of nominees were different.
• Against the basic structure of separation of 3 organs of government
• NJAC had the power to frame regulations laying down the criteria of suitability, and the procedure of appointing judges.
• These regulations had to be tabled before both Houses of Parliament.
• Parliament could nullify these regulations or modify them.

Conclusion

• It requires a politician to rise to the level of a statesman and a visionary to understand how vital an independent judiciary is to the functioning of a constitutional democracy.
• Democracy does not end with free and fair elections. Of equal importance are robust and independent institutions that create the necessary checks and balances.

Prelims Takeaway

• NJAC