Writ Petition filed in Kerala High Court challenging the National Judicial Appointments Commission Act [Read the Petition]

The Writ Petition has been filed by Adv. Baisil Attipetty of the Kerala High Court, challenging the National Judicial Appointments Commission Act, 2014, on the ground that it is violative of Article 50 of the Constitution of India.

It further submits that the enactment would infringe the constitutional right to have an independent judiciary free from the clutches of Legislature and Executive, as well as would go against the basic structure of the Constitution of India.

It prays for staying the operation of the National Judicial Appointments Commission Act, 2014, pending final decision in the Writ Petition.

Relying on Article 50 of the Constitution of India, the Petition states, "Article 50 of the Constitution of India postulates separation of powers between Legislature, Executive and Judiciary.  The Constitution of India has been framed by the Constituent Assembly not by the Parliament. Parliament has only a limited mandate for 5 years cannot alter the Basic Structure of the Constitution. Union of India being a litigant before the High Courts and Supreme Court of India may not appoint Judges in Higher Judiciary for an independent judiciary."

It submits that the Act infringes the fundamental right of citizens to have an independent Judiciary free from the clutches and control of Executive and Legislature.

"The Parliament has only a limited mandate for 5 years which cannot alter the long settled position through an amendment in the Constitution," it adds.

Further, questioning the procedure for appointment under the National Judicial Appointments Commission Act, 2014, the petition states that the Section 6(4) of the Act stipulates that the Chief Justice of the High Courts shall consult two eminent Advocates of the High Courts before making recommendation of appointment of Judges of High Court. After the selection of High Court Judges, the two eminent Advocates of the High Court, who recommended the names, can appear before the Judges and argue cases. This, according to the Petitioner, is arbitrary and involves an element of personal bias "which may affect the impartiality and independent judiciary enunciated under the basic structure of the Constitution of India."

As per Section 5(1) of the Act, the senior-most Judge of the Supreme Court will be appointed as the Chief Justice of India, if he is considered fit to hold the office. This provision, as per the Petition, is "unconstitutional and ultra vires to the basic structure doctrine of the Constitution of India." It says, "At present the appointment of Chief Justice of Supreme Court of India is done based on the seniority alone, which is the settled position, which cannot be tiltered, altered, modified in the guise of Act 40 of 2014."

Further, according to the Act, Chief Justice of a High Court would be appointed on the recommendation of the Commission on the basis of inter say seniority of High Court Judges with ability, merit and any other criteria of suitability as may be specified by the regulation. The term "any other criteria of suitability" mentioned in Sub Section 1 of Section 6 of the Act, submits the petitioner, is vague which may lead to shake the independence of the judiciary.

It brings to the Court's notice, a letter dated 09.11.1975, written by the renowned Lawyer Nani A. Palkiwala, to the then Prime Minister Smt. Indira Gandhi requesting her not to initiate any attempt to tilter, alter or modify the basic structure of the Constitution of India, at the time when an attempt was made to alter the basic structure of the Constitution of India.

The Petitioner further draws the attention of the Court to his Petition (Baisil Attipetty @ Basil A.G. v. Union of India & Anr., WP (C). No. 5201 of 2011), in which the Kerala High Court had permitted the petitioner to challenge the Act, if the Judges Standards and Accountability Bill 2010 came into existence as an Act.

A similar observation was rendered by the Kerala High Court in the case of Baisil Attipetty @ Basil A.G. v. Union of India & Ors., WP (C). No. 22411 of 2012), when he had challenged the Judges Standards and Accountability Bill 2012.

Read the Petition here.