Judicial appointment panel case goes to constitutional bench

Plea had questioned the process adopted in passing the act that would replace judges’ collegiums

GN Bureau | April 7, 2015


#Supreme Court   #judges appointment   #National Judicial Appointment Commission act   #Fali Nariman   #Anil Dave   #Mukul Rohatgi   #constitutional bench  


A three-judge bench of justices A R Dave, J Chelameswar and Madan B Lokur, which had reserved its judgement on the National Judicial Appointment Commission act (NJAC) and constitutional amendment of Article 124 A, has referred the matter to a five-judges constitutional bench.

The court also refused to stay operation of NJAC Act meant to replace collegium system of judges appointing judges.

The verdict was reserved on March 24 after Attorney General (AG) Mukul Rohatgi, appearing for the Centre, wrapped up his arguments saying that the pleas be dismissed as they were "premature" and "academic" in nature.

The Supreme Court Advocates on Record Association (SCAORA)and Bar Association of India (BAI), represented by Fali Nariman and Anil Divan respectively, had opposed the two Acts and sought that direction be passed to maintain status quo, saying the entire process would otherwise become irreversible.

However, the Supreme Court Bar Association (SCBA) had strongly favoured the government on laws on appointment of judges in higher judiciary, saying there has been "unanimity" that the present mechanism has "serious pitfalls".

There is unanimity in the view that there are serious pitfalls in the collegium system," SCBA president and senior advocate Dushyant Dave had submitted.

Those opposing the new law had submitted that the issue should be referred to a Constitution Bench of five judges. Nariman and Divan had contended that as per constitutional scheme, the NJAC Act should not have been passed ahead of enabling constitutional amendment. "Where was the authority to pass the NJAC Act," Nariman had asked. According to him the Act should have been passed after the constitutional amendment.

However, the AG had argued that the power of Parliament to make law is "plenary" and hence, the methodology adopted by the legislature in clearing the law on the floor of the House cannot be "tested" by the court. Rohatgi submitted that "Only end product can be examined by the courts and it is irrelevant that this Act was passed earlier and that Act was passed later."

"Only an Act, after notification, can be tested in the court of law and not the procedures adopted by the Parliament," the Attorney General had submitted.

The apex court had said it could proceed on the merits of the matter only after deciding whether the petitions challenging the validity of the act and the NJAC act were maintainable or not.

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