The Supreme Court has quashed the proposed amendment to the Indian constitution regarding the appointment of judges in the higher judiciary. In doing so, the court declared the National Judicial Appointments Commission (NJAC) Act unconstitutional and void.
The amendment provided for the establishment of a broad-based NJAC to make recommendations for the appointment of judges in the Supreme Court and high courts. The proposal envisaged giving the executive and other eminent persons an important role in the judicial selection process.
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The court emphasized the importance of minimal interference by the executive in the selection of judges.
Justice Jagdish Singh Khehar in his judgment stated that the NJAC threatened the “primacy of the judiciary” and delivered “a further devastating blow, by making it extremely fragile”. He further stated that there was “no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary”.
In separate judgments, justices Madan Lokur, Kurian Joseph and Adarsh Kumar Goel supported Khehar’s decision and declared that the judicial appointment process would continue to follow the “collegiums system”, where the final decision on any appointment would lie with the chief justice of India (CJI).
Justice J Chelameswar was the only judge to express a different opinion on the issue, arguing that the current appointment system required “comprehensive reform”. He also asserted that keeping power in the hands of the CJI was not the only means to establish an independent and efficient judiciary and that “civil society representation will bring about critically desirable transparency, commitment and participation of the ultimate stakeholders – the people”.
This is the first time in 35 years that the Supreme Court has overturned a constitutional amendment. The bench is to examine recommendations from the government, petitioners and other stakeholders on the issue.
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