Supreme Court to hear pleas challenging National Judicial Appointments Commission on March 10

NEW DELHI: The Supreme Court will on Tuesday begin hearing petitions challenging the legal validity of the two Acts passed last year to create the National Judicial Appointments Commission (NJAC), which seeks to replace the existing collegium system of appointing judges to superior courts by a more broad-based system involving the executive.

A three-judge bench, comprising justices Anil R Dave, Jasti Chelameswar and Madan B Lokur, will begin hearing these petitions, exercising the power of judicial review to decide whether the Acts conform to the basic structure of the constitution.

After preliminary arguments, the complex issues arising out of these petitions will possibly be referred to a larger bench as an earlier ruling in 1993 creating the collegium system was delivered by a bench of nine judges. A bench of more than nine judges will now be needed to overrule that judgement.

The crucial hearing will determine the nature of the ties between the executive and the judiciary as also the concept of judicial independence enshrined in the constitution. Lawyers said that the hearing could go on for weeks, if not months.

Any decision to strike down the new laws could put the judiciary in conflict with the government. Some experts said not doing so could mean a cloud over judicial independence. The top court had earlier dismissed similar petitions challenging the NJAC’s creation as “premature” as both houses of Parliament were yet to pass the bills. Since then, both houses have done so.

The Constitution (121st Amendment) Bill, 2014, and the National Judicial Appointments Commission Bill, 2014, were passed on August 13-14 last year. The president has since assented to them and these have been published in the official gazette of India.

However, the government has so far failed to notify the date from which the Acts will come into force, citing the pending petitions in court. Law ministry officials had said on condition of anonymity that the government would not notify the Acts until the court decided on the petitions.

The ministry also deferred framing of rules and procedures regarding the NJAC’s functioning, effectively letting the collegium system continue in the interim. The SC collegium has since appointed at least one sitting high court chief justice as an apex court judge. Justice Amitava Roy was elevated a week before he was to demit office as chief justice of the Odisha high court at 62. He will have three years as a SC judge since the retirement age of judges in the top court is 65.

At least eight petitions, mostly PIL pleas, were filed in the SC challenging the twin Acts after the President assented to them. These include petitions filed by lawyer Prashant Bhushan through NGO Centre for Public Interest Litigation (CPIL), former additional solicitor general (ASG) Bishwajit Bhattacharya, advocate Manohar Lal Sharma and Bhim Singh of the Jammu and Kashmir Panther’s Party. The Supreme Court Advocates on Record Association has also challenged the two laws.

These petitions argue that the bills, which take away the primacy of the top court in higher judicial appointments, will erode judicial independence, a cornerstone of the constitution. Under the collegium system, all appointments to the SC are made by the CJI in consultation with the senior-most judges of the top court. For HC appointments, the call is taken by the chief justice of the court and senior judges.

The executive can at most return names for re-consideration by the collegium but has to approve them if they’re sent back. The top court had created the collegium system in 1993.