Constitution bench to hear Judicial Appointment Act

Rajat Kain

JudgesThe three Judge bench of Supreme Court has referred the matter challenging constitutional validity of National Judicial Appointments Commission Act (NJAC) to a larger bench. The matter has so far been argued before the bench of Justices Anil R. Dave, J. Chelameswar and Madan B Lokur in the apex court.

“We refer these petitions to a larger bench” said the bench in their order on the batch of petitions challenging the new bill passed by the Parliament that will replace an existing collegium system of appointing and elevating the judges. The bench has also reserved its order on the maintainability of the petitions.

The Supreme Court Advocates on Record Association (SCAORA), Bar Association of India (BAI) and other petitioners had sought stay on the operation of NJAC Act.

The Judicial Accountability Bill was passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014 by amending the Constitution of India through the ninety-ninth constitution amendment. The Bill and the Constitutional Amendment Bill has been endorsed by 16 state legislatures and was subsequently lent an assent by the President Pranab Mukherjee on 31st December 2014.

The bench observed that they are not passing any orders on the petitioner’s plea seeking an interim relief. The bench further observed that the arguments concerning the merits of the matter shall be argued before the larger bench now.

Earlier during the arguments Attorney General Mukul Rohatgi, appearing for the Central government, asserted the view that the pleas be dismissed as they were “premature and academic” in nature.

AG Mukul Rohtagi also argued that the power of Parliament to make law is “plenary” and therefore, the methodology adopted by the legislature in clearing the law on the floor of the House cannot be “tested by the court”.

On the other hand, petitioners argued that the matter be referred to a Constitution Bench of five judges. Appearing for the petitioners, noted jurists Fali S Nariman and Anil Divan argued that as per constitutional scheme, the NJAC Act should not have been passed ahead of enabling constitutional amendment. “Where was the authority to pass the NJAC Act? Act should have been passed after the constitutional amendment,” Contended petitioners’ counsel Fali S Nariman

Countering the petitioner’s arguments, Rohatgi submitted that “Only an Act, after notification, can be tested in the court of law and not the procedures adopted by Parliament,”.

The Supreme Court bench further said it could proceed on the merits of the matter only after deciding whether the petitions challenging the validity of the Constitutional Amendment Act and the NJAC Act were maintainable or not. The order on the maintainability has been reserved to be passed soon.

Interestingly, the new law on the appointment of judges has got a support from the Supreme Court Bar Association (SCBA). SCBA strongly favoured the NJAC Act on appointment of judges in higher judiciary. “There is unanimity in the view that there are serious pitfalls in the collegium system,” SCBA president and senior advocate Dushyant Dave had submitted before the bench.

SCBA too is of the view that the pleas challenging the NJAC Act were premature in nature.