The National Judicial Appointments Commission (NJAC)

By Maitreyee Dixit (NALSAR, Batch of 2020)

What is the NJAC?

Recently, the Supreme Court passed a landmark judgement striking down the National Judicial Appointments Commission by a 4:1 majority, and held that it violated the basic structure of the constitution. Before I explain what the basic structure is, let me give you a brief overview of the NJAC itself. The NJAC challenged a mechanism integral to the Indian judiciary: the appointment and transfer of judges. It was established by the Union Government through the 99^th Constitutional Amendment Act, 2014. Another bill, the NJAC Bill, was also passed along with this. The legislations were passed by both houses of the parliament with 2/3^rd of the majority, and subsequently received the assent of the President and the approval of 20 state legislatures in 2014. This commission was set to replace an almost two decade old collegium system which was established by the Second and the Third Judges case, although it finds no mention in the Constitution itself. The collegium system is the mechanism used currently for recommending the appointments and transfer of judges. It consists of the Chief Justice of India and a forum of four senior most judges of the Supreme Court.

Composition of the NJAC

The NJAC was to consist of-

1. Chief Justice of India (Chairperson)
2. Two senior most Supreme Court Judges next to the Chief Justice of India
3. The Union Minister of Law and Justice
4. Two eminent persons (to be nominated by a committee consisting of the Chief Justice of  India, Prime Minster of India and the Leader  of Opposition in the Lok Sabha or the leader of the single largest opposition party in the House where there is no such Leader of Opposition)
   Of the two eminent persons, one person would be from the SC/ST/OBC/minority communities or be a woman. The eminent persons shall be nominated for a period of three years who shall not be eligible for re-nomination.

Why did the need for the NJAC arise?

The need arose because of creation of an ‘empire within an empire’ inside the judiciary along with that of a ‘give and take’ system of sorts. In other words, the lack of transparency in the appointment of judges, the inaccessibility of the process to the public due to its exclusive nature and the growth of corruption in the system because of all these factors, gave birth to the demand for a more transparent system that then came to be envisioned through the working of the NJAC.

The Challenge to the NJAC

The Constitutional amendment and the NJAC Act was challenged in the Supreme Court by the Supreme Court Advocates on Record Association (SCAORA) and others contending that the amendment and the Act was unconstitutional and posed a threat to the independence of judiciary.

After the petition was accepted, on October 16, a five-member constitutional bench of Supreme Court headed by the Justice J.S. Khehar with 4:1 majority declared the NJAC Act and the 99th Constitutional Amendment Act as ‘unconstitutional and void’. The majority was constituted by Justices Khehar, Goel, Lokur and Joseph, while Justice Chelameshwar dissented.

The Supreme Court Judgment

The Supreme Court struck down the amendment while focusing on the following key points-

1. The clauses provided in the amendment are inadequate to preserve the primacy of the judiciary in judicial appointments, a basic feature of the constitution.
2. Inclusion of the Law Minister in the commission impinged both on the independence of the judiciary and the doctrine of separation of powers between the judiciary and the executive.
3. There was also absence of definition and ambiguity as to who would be considered ‘eminent persons’.
4. The bench also rejected petitions for reference to a larger Bench, and for reconsideration of the Second and Third Judges cases.
5. To consider introduction of appropriate measures, if any, for an improved working of the “collegium system”.

The Court ruled that an impingement on the independence of the judiciary, and the doctrine of the separation of powers, would constitute violation of the basic structure of the constitution. The exclusion of the Executive from the appointment process was touted to be important as the government is the largest litigant, and inclusion of the the executive in case of appointments would cause a conflict of interest. This would also lead to loss of trust in the judiciary. After quashing this act, the Court admitted that the collegium system needs to be more transparent in nature, and called for public opinion on the same while suggesting guidelines to achieve the same.

What is the Basic Structure of the Constitution?

Article 245 of the Constitution gives the Parliament the power to make laws. Article 368 allows the Parliament to amend constitutional provisions. The provision, however, says nothing about the exact nature, scope and limitations of this amending power.

The question, therefore, arises: is the Parliament’s power to amend the Constitution unlimited or unrestrained? For example, can the Parliament repeal the Constitution entirely, and convert India from a secular democratic republic to a theocratic despotic monarchy?

In the case of Kesavananda Bharati v. State of Kerala, a thirteen-judge bench of the Indian Supreme Court, by a majority of 7:6, ruled that the Parliament cannot do so. It was held that the Parliament could only amend the Constitution to the extent that it did not “damage or destroy the basic structure of the Constitution.” The Basic Structure includes concepts such as the supremacy of the Constitution, secularism, democratic form of government, separation of powers, welfare state, etc.

How is the Constitution Amended?

In the present case, the ratification of the bill by 20 state legislatures as well as passing by 2/3^rd  of the majority of the parliament (before obtaining the assent of the President) was required because it was a Constitutional Amendment.  Article 368 provides for amending the constitution and Article 368(2) provides for using this method. It prescribes that such bills do not require recommendation by the President and can be introduced in either House of Parliament. Also, these bills have to be passed by a majority of the ‘total membership’ of that House and by a majority of not less than two-thirds of the members of that House ‘present and voting’.

“Total membership” means the total number of members comprising the House irrespective of whether there are vacancies or absentees on any account.

“Present and voting”, means members who vote for “ayes” or for “nos”. Members who are present in the House and vote “abstention” either through the electronic vote recorder or on a voting slip or in any other manner, are not treated as “present and voting.”

Bills that have to be passed by Special Majority and also to be ratified by not less than one-half of the State Legislatures

This comprises of Constitutional Amendment Bills which seek to make any change in articles relating to:

1. The Election of the President.
2. The extent of the Executive Power of the Union and the States.
3. The Supreme Court and the High Courts.
4. Any of the Lists in the Seventh Schedule.
5. The representation of States in Parliament.
6. The provisions of Article 368 itself.

The ratification by the State Legislatures has to be made by resolutions to that effect. And such resolutions must be passed before the Constitution Amendment Bill is presented to the President for assent.