PIL filed in High Court of Kerala challenging the constitutionality of the National Judicial Appointments Commission Act

A public interest litigation (PIL) has been filed in the High Court of Kerala, challenging the constitutionality of the National Judicial Appointments Commission Act of 2014 (NJAC Act, for short) that seeks to put an end to the collegium system of appointment of judges. 

  

In the Public Interest Litigation filed by Adv: Basil Attipetty, the petitioner has averred that the NJAC Act infringes on the fundamental right of citizens to have an independent judiciary that is free from the clutches and control of the executive and legislature. 

Further, the petitioner contends that the NJAC Act is in violation of Article 50 of the Constitution, which lays down that the state should take steps to separate the judiciary from the executive. Constitutional provisions regarding appointment of judges of the higher judiciary cannot be amended by Parliament as that would go against the basic structure of the Constitution. Parliament has only a mandate for five years whereas the Constitution with the basic features was framed by the Constituent Assembly, the petition said.

Parliament has no authority to amend, alter, or modify the Constitution to destroy its basic structure by introducing the NJAC Act. The Constitution framed by the Constituent Assembly cannot be amended by the present Parliament, it is contended in the petition.

The petitioner further contends that Parliament and executive cannot frame an enactment to circumvent the judgments of the Supreme Court as the law declared by the apex Court is the law of the land and becomes part of the Constitution.

The petitioner has sought for a declaration that the NJAC Act is unconstitutional and null and void. The PIL is expected  to come up for admission before the Division Bench headed by Chief Justice Ashok Bhushan on Friday.

Constitutional validity of National Judicial Appointments Commission Act challenged in 3 separate petitions before the Supreme Court

Three petitions seeking quashing of the new law on appointment of judges were moved in the Supreme Court on Monday, saying the proposed National Judicial Appointments Commission was “unconstitutional and violative” of the basic structure of the Constitution.

The petitions were filed barely a few days after the Constitution Amendment Bill setting up the NJAC received the assent of the President of India. 

The petitions were moved separately by the SC Advocates on Record Association and senior advocates Bishwajit Bhattacharyya and Bhim Singh against the constitutional validity of the NJAC.

The petition filed by the SC AoR Association, drafted by advocate Subhash Sharma and settled by senior lawyer Fali S Nariman, contends that the NJAC Act laid down framing of regulations for appointment of judges after due approval by both the Houses of Parliament. The petitioner said that this power could not be delegated to Parliament in the wake of the constitutional provisions that specifically envisaged how judges were to be selected and appointed.

“It is also submitted that the ‘primacy’ of the opinion of Chief Justice of India is sought to be done away with by passing the NJAC Act of 2014, by giving veto powers to any two members of the NJAC (being either the eminent person or the law minister), thereby overruling the recommendation of the Chief Justice of India and other two senior-most Judges of the Supreme Court,” stated the petition. It added that a nine-judge bench had already declared that independence of judiciary was a facet of the basic structure of the Constitution and that Parliament could not hence amend it.

Bhattacharyya’s petition described the NJAC as a “severe attack” on the institution of the Chief Justice of India, who will be vetoed out by an overpowering Executive in matters of making appointments. 

The NJAC Act and the Constitution (99th Amendment) Act are ultra vires of the basic structure of the Constitution, as various clauses stipulated therein make a frontal attack on the independence of the Judiciary and on the doctrine of separation of powers, as per the petitions by Bhattacharya and Bhim Singh.