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After two months of suspense, a Constitution Bench of the Supreme Court of India will put an end to the long wait tomorrow when it delivers its verdict on the Constitutionality of the National Judicial Appointments Commission (NJAC).
Krishnadas Rajagopal, correspondent for The Hindu, had tweeted yesterday that the judgment will be delivered tomorrow.
The Bench delivering the judgment comprises Khehar J., Madan Lokur J., Jasti Chelameswar J., Kurian Joseph J. and AK Goel J.
The judgment is not merely a pronouncement on the Constitutional validity of a statutory body created for appointing judges. It is being viewed by many as tussle on a smaller canvas between the two foremost wings of the Indian democracy. While many legal pundits view it as an executive-judiciary melee, a vast majority is waiting for the Supreme Court’s interpretation on the doctrine of separation of powers, judicial independence and whether the NJAC would pass the test of the same.
The Court has not gone into these seminal Constitutional issues in this millennia – the last time it pronounced upon judicial appointments was in 1998 when it laid down that the Collegium should consist of the five senior most judges of the Supreme Court. Tomorrow’s judgment could, therefore, very well turn out to be the most important judgment delivered by the Supreme Court in the last two decades.
If the NJAC is struck down, then other interesting issues might crop up. Whether the Collegium system will spring back to life is one such major issue. While Attorney general Mukul Rohatgi contended that the Second Judges case and the Collegium system has been wiped out with the amendment to Article 124, Fali Nairman argued that if the NJAC goes, the old system will automatically revive.
It will be interesting to see what the Court will have to say in this regard.
Will the Court uphold primacy of the CJI as part of judicial independence and thereby the Basic Structure and strike down NJAC for infringing it? Will it uphold NJAC as not violative of primacy of CJI; or will the Court strike down judicial primacy in judges appointments altogether thereby upholding the Constitutionality of NJAC. The possibilities are endless. Fingers are crossed!
Below is a flashback of what happened in the Supreme Court:
August 2014: Anti-NJAC PIL galore
The first challenge to the NJAC came at a stage when it was in the shape of a Bill – the Constitution (One Hundred and Twenty First Amendment) Bill, 2014. There were many petitioners and petitions; the lead petitioner was the Supreme Court Advocates-on-Record Association (SCAORA) with Senior Advocate Fali Nariman spearheading their attack.
When the matter came up for hearing on August 25, a three judge Bench presided by Justice Anil R Dave refused to entertain the petitions on the ground that they are pre-mature. The Court, however, granted the petitioners the liberty to approach the Court at an appropriate stage.
December 2014 – January 2015: Bill becomes Act, Challenge revives
On the final day of the year, President Pranab Mukherjee gave his assent to the Constitution (121st) Amendment Bill, 2014. The petitioners, who had moved the court in 2014, swung back into action and the challenge to the Constitutionality of the NJAC revived in the Supreme Court. The petitioners included SCAORA, Centre for PIL, Senior Advocates Bhim Singh, Bishwajit Bhattacharya, Bar Association of India, Sales Tax Bar Association,
March 10 to April 7: Hearing before Anil Dave J. led 3-judge Bench; Reference to larger Bench
The petitions came up for the first time on March 10, 2015 before a 3-judge Bench presided by Justice Anil R Dave and comprising Justices Jasti Chelameswar and Madan B Lokur. The petitioners contended that the case involves substantial questions of law pertaining to the interpretation of the Constitution and prayed that the matter should be heard before a three judge Bench.
Attorney General Mukul Rohatgi, appearing for the Centre, argued that the petitions should not be entertained since the Act had not come into force and that the petitions are, therefore, pre-mature. The Bench heard the matter for four days on whether it should be admitted or not. It then reserved its verdict on March 24.
It pronounced its order on April 7, 2015. Accepting the submissions made by the petitioners that the petitions involve substantial questions of law, the Court directed that the matter be heard by a larger Bench.
April 13: Death of Collegium as Centre notifies NJAC Act
Six days after the case was referred to a larger Bench, the Central government notified the NJAC Act, and the Constitution (121st Amendment) Act, 2014, thereby, replacing the 20 year old Collegium system.
April 15: Larger Bench and Dave J. recusal
On April 15, the matter came up for hearing before a Constitution Bench. Once again, the presiding judge was Justice Anil Dave. However, since the NJAC had already come into existence and Justice Dave had become an ex-officio member of the NJAC by virtue of the statute, the petitioners sought a declaration from Justice Dave that he will not take part in the meetings and deliberations of the NJAC till the case is finally decided. However, Justice Dave chose to recuse from the case.
April 21 -22: Justice Khehar presides, Court admits petitions
A new Bench was constituted with Justice JS Khehar at its helm. The rest of the Bench composition remained the same from the earlier Constitution Bench – Justice Madan B Lokur, Justice Jasti Chelameswar, Justice Kurian Joseph and Justice AK Goel. When the matter came up before this Bench, Justice Khehar’s presence was also objected to on the ground that he was part of the erstwhile Collegium and will also take over as Chief Justice of India a few years down the line, thereby becoming a member of the NJAC. Like with Justice Anil R Dave, the parties contended that this was conflict of interest.
Justice Khehar, however, refused to recuse and decided to continue hearing the case. Simultaneously, the Court issued notice to the Central government and all the States. It also ruled that it will treat the petition filed by the Supreme Court Advocates-on-Record Association as the lead petition.
April 27: NJAC in cold storage as CJI Dattu refuses to attend; Hearing on merits commences
In the meanwhile, Chief Justice of India, HL Dattu, wrote to Prime Minister Narendra Modi saying that he will not attend the proceedings to select two “eminent persons” for the National Judicial Appointments Commission till the case is finally decided by the Supreme Court. This put the NJAC in cold storage. However, the Supreme Court decided to go ahead with the hearing choosing to not decide on how judicial appointments can be made in the interim.
May, 2015: Centre wants ghost of Second Judges’ case gone once and for all
One week after the hearing commenced on merits, the Central government began its submissions. Attorney General Mukul Rohatgi made it clear that the matter should be referred to a larger Bench because he was proposing to challenge the correctness of the decision of the Supreme Court in the Second Judges case. He argued that the Constitution as it stood originally did not give the CJI any primacy with respect to judicial appointments and that was a creation of the Second judges case. He submitted that the said interpretation in the Second Judges case was wrong and suggested that the present should be heard by a Bench larger than 9 so that the Court can pronounce on the correctness of the Second Judges case which was a 9-judge Bench decision.
May 12: Court refuses reference to larger Bench, proceeds to hear on the Constitutionality of NJAC
The Bench was, however, adamant to hear the case. It ruled that it will hear the case on merits and turned down the AG’s submissions that the case has to be referred to a larger Bench to revisit the Second Judges case. It, however, made it clear that the said submission was not being considered as a preliminary issue thereby meaning that it has left the issue open for consideration and the judgment itself could pronounce on that issue. It then posted the case for June 8 – in the middle of the Supreme Court’s summer vacation.
Vacation hearing: June 8 – June 19
The hearing restarted on June 8 before the Constitution Bench and continued till June 19. A major part of the hearing happened during these days.
July 15: After 31 days of hearing, Court reserves judgment
The hearing resumed on July 7 when the Supreme Court reopened after the summer vacation. After 31 days, the hearing concluded on July 15, 2015 and the Court reserved its judgment in the matter.
Below is the list of petitioners and their lawyers.
|Supreme Court Advocates-on-Record Association||Fali Nariman|
|Bhim Singh||In person, Advocate Dinesh Kumar Garg (AoR)|
|Change India||Santosh Paul|
|Centre for Public Interest Litigation||Prashant Bhushan|
|Bar Association of India||Anil B Divan|
|Ashish Dixit||Ram Jethmalani|
|Mathews J Nedumpara||In person|
|Manohar Lal Sharma||In person|
|RK Kapoor||In person|
|Bishwajit Bhattacharya||In person|
|Suraz India Trust||Rajiv Daiya|
|Sales Tax Bar Association||Arvind P Datar|
|Union of India||Mukul Rohatgi, Ranjit Kumar, PS Narasimha|
|State of Madhya Pradesh||KK Venugopal|
|State of Haryana||Harish Salve|
Besides these lawyers, certain other Senior Advocates also assisted the court by setting forth their views including Rajiv Dhavan and TR Andhyarujina.
Arguments by the Petitioners