The Supreme Court in a landmark ruling has said that the recently-framed National Judicial Appointments Commission, whereby government sought have a say in the appointment of judges, is 'unconstitutional.' Several constitutional experts and lawyers are still studying the basis and the nuances that a five-judge constitutional bench, led by Justice Khehar, delved into to arrive at their judgement, but meanwhile this is why the debate on the validity of the NJAC is not a mere technicality.
# Who gets to appoint Supreme Court and High Court judges ?
To begin at the beginning, the architects of India's constitution quite simply envisaged the President appointing High Court and Supreme Court judges after consulting with the Chief Justice, and in the case of HC judges, the governor of states. Article 141 and 127 of the Constitution deal with these issues. The process of dissent began, after Prime Minister Indira Gandhi in the events leading up the Emergency of 1975 ,managed to appoint Justice AN Ray as the Chief Justice over-riding three senior judges.
In what in legal history is called the First Judges Case, the law came to be that the Chief Justice of India could be over-ruled when deciding to appoint or transfer judges. By the '90s, there was a Second Judges and Three Judges Case, by which the courts wrested power to have complete say in appointing judges.
# What's the procedure in place now ?
It is called the Collegium system. The Chief Justice consults (and it's in the word 'consults' that the most contentious debates have occurred) with four senior-most judges. Curiously this procedure has no mention in the Constitution.
#How did the National Judicial Appointments Commission (NJAC) come about?
The NJAC is about the government is wanting to take power back. Through the years it has pointed to instances of judicial corruption and nepotism to build the case that the judiciary's appointment procedures are opaque. As a culmination of this process, the government on 13 April notified the National Judicial Appointments Commission (NJAC) Act, 2014, the related constitutional amendment called the 99th amendment, to make it law.
NJAC comprised six members—three Supreme Court judges including the CJI, the Union law minister and two “eminent persons” to be chosen by the CJI, prime minister and the leader of the opposition in the Lok Sabha or leader of the largest opposition party in the Lok Sabha. It was thus a split between government-nominated and judicially-appointed experts, with the Chief Justice having veto powers. The balance, thus tilted toward the judiciary keeping in view their demand for independence. Moreover, senior supreme court justices have
# After being passed by the Parliament, how did the NJAC get dissolved?
Several lawyer groups, representatives of the bar have moved petitions challenging the validity of the NJAC. The essential argument was that the NJAC compromised on the independence of the judiciary, to which the government's main counsel Mukul Rohatgi's defence was that it would bring in diversity, made open to the Right To Information Act and more equitable.
Friday's judgement, by the five member- constitutional bench has thus found merit in the groups opposing the NJAC.
#What is the road ahead?
As of now top lawyers, the attorney general are still expressing their displeasure at the decision. For parliament to bring a new law, it would have to ensure that the clauses that undermined the NJAC have to edited out. A rehashed version of the same law can't brought before the court. Several commentators however say that for the Court to stand, almost singlehandedly against the will of Parliament, cannot be without some repercussion.