Judgments

SUPREME COURT ADVOCATE-ON-RECORED ASSOCIATION VS UNION OF INDIA (FOURTH JUDGES CASE)

The Supreme Court with 4:1 majority in Supreme Court Advocate-on-Record Association Vs. Union of India (2015) 13 SCR 1 held that Ninety Ninth Amendment and National Judicial Appointment Commission (NJAC) Act are unconstitutional.

FACTS OF THE CASE

The Constitution (One Hundred and Twenty -first Amendment) Bill, 2014 was passed by the Lok Sabha on 13th August, 2014 and by Rajya Sabha on 14th August, 2014. It received the ratification of more than one half of the States as required by Article 368 (2) of the Constitution and received the assent of the President on 31st December, 2014 when it became the Constitution (Ninety ninth Amendment) Act, 2014.

Simultaneous with the passage of the Constitution (One Hundred and Twenty-First Amendment) Bill, Parliament also passed the National Judicial Appointment Commission Bill, 2014 which received assent of the President on 31st December, 2014 and it was brought into force by a gazette notification issued on 13th April, 2015.

The Ninety Ninth Amendment provided for National Judicial Appointment Commission consisting of – (a) the Chief Justice of India, Chairperson, ex officio; (b) tow other senior judges of the Supreme Court next to Chief Justice of India – Members , ex officio; (c) the Union Minister in charge of Law and Justice – Member, ex officio; (d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such leader of Opposition, then the Leader of single largest Opposition Party in the House of the People   One of the eminent person was to be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women. An eminent person was to be nominated for a period of three years and was not eligible for renomination.

The Constitutional Validity of Ninety-ninth Amendment as well as National Judicial Appointments Commission were challenged before the Supreme Court.

FINDINGS OF THE SUPREME COURT

Article 124(2)  provides that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for that purpose.

In the S. P. Gupta Vs. President of India AIR 1982SC149 ( First Judges Case)  the Supreme Court held that independence of judiciary is basic feature of the Constitution. In the appointment of a judge of the Supreme Court or the High Court, the word ‘consultation’ occurring in Article 124 (2) and in Article 217 (1) of the Constitution does not mean ‘concurrence’. The ultimate power to appoint judges rests with the Union.  The Supreme Court did not find the extant system of appointment of judges ideal and idea of collegium was floated as a replacement.

The majority view in the First Judges case was overruled in the Supreme Court Advocate-on-Record Association Vs. Union of India AIR 1994 SC 268 (Second Judges Case) and it was held that “consultation” in Article 217 and Article 124 of the Constitution meant that “primacy” in the appointment of judges must rest with the Chief Justice of India.

Special Reference No. 1 of 1998 (Third Judges Case) was a presidential reference, wherein the Supreme Court opined that the expression “consultation with the Chief Justice of India” in Articles 217 (1) and 222 (1) of the Constitution requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute ‘consultation’ within the meaning of the said Articles.

The Supreme Court observed that earlier decisions in Second and Third Judges’ case had to taken as binding precedents. Once it is so, it has to be held that primacy of the judiciary in appointment of judges is part of the basic structure. Appointment of judges is part of independence of judiciary.

The Supreme Court observed that even if in appointing two eminent members CJI is also a member, the fact remains that the PM and Leader of the Opposition have significant roles in appointing such members, who will have power not only equal to the CJI and two senior most judges of the Supreme Court in making appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts but also right to reject the unanimous proposal of the CJI and the two senior mots judges. Such composition of the Commission cannot be held to be conducive to the independence of judiciary. Appointment of judges of the Supreme Court and appointment/transfer of judges of High Court can certainly be influenced to a great extent by the Law Minister and two nominated members, thereby affecting the independence of judiciary.

The primacy of judiciary is integral to the independence of judiciary, separation of powers, federalism and democracy, rule of law and supremacy of the Constitution. The amendment does away with the primacy of even unanimous opinion of the judicial members.  

The Supreme Court held that Ninety Ninth Amendment and NJAC Act damages the basic structure  of the Constitution and are unconstitutional. The Supreme Court revived that pre-existing system was revived.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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