SC rejects state role in appointing judges

New Delhi: In a jolt to the government, the Supreme Court (SC) yesterday struck down the Constitution's 99th amendment and termed the National Judicial Appointments Commission (NJAC) Act as unconstitutional, restoring the collegium system for appointment of judges to the higher judiciary.

The old way: According to the collegium system, a body of apex court judges would select and recommend the names of persons they deemed fit to be appointed as judges

In a "collective order", the Constitution bench of Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel said the 99th amendment and the NJAC Act were unconstitutional and void.

"The Constitution (99th Amendment) Act, 2014, is declared unconstitutional and void" and "The National Judicial Appointments Commission Act, 2014, is declared unconstitutional and void", the court said.

While the experts said NJAC was unconstitutional, Union Law Minister D V Sadananda Gowda said he would consult Prime Minister Narendra Modi and seek legal advice on the issue.

Talking to media persons after the judgement, Gowda said, "I will go through the text in detail and consult our prime minister, legal experts and others." The minister, who looked surprised at the order, said the NJAC Act represented the will of the people because all the members in the Lok Sabha and the Rajya Sabha backed it.

Legal experts, however, said while the NJAC was against the Constitution, the collegium system of appointing judges was not flawless.

"I am not saying that this system is flawless... this has its own drawbacks. But between the two evils, this is the lesser evil," advocate Kamini Jaiswal said, referring to the collegium system.

The Constitution's 99th amendment, making provision for the National Judicial Appointments Commission (NJAC), was introduced to replace the 1993 collegium system for the appointment of judges to the Supreme Court and High Courts.

Law minister's presence unwanted: SC
The SC held that presence of union law minister in the NJAC would be detrimental, as he can influence the decision of other members and it would be ‘inappropriate' for him to be a part of the decision-making process in appointment of judges.

"The presence of the law minister in the NJAC casts a doubt on the principle of cabinet responsibility," said Justice Madan B Lokur, while agreeing with Justice Jagdish Singh Khehar, Justice Kurian Joseph and Justice Adarsh Kumar Goel to strike down the Constitution's 99th amendment and the NJAC Act. He held the law minister's presence in the NJAC was "totally unnecessary and ill-advised".