Challenge against 121st Amendment and National Judicial Commission Bill 2014 is premature; SC dismisses all the PILs challenging the Bills

A Three Judges Bench of the Supreme Court consisting of Justice Anil Dave, Justice Chelameswar and Justice Sikri dismissed a batch of PILs challenging the 121st Constitutional amendment and National Judicial Commission Bill 2014 which provides for a new mechanism for appointment of Judges in higher Judiciary and for scrapping the collegium system prevalent for the past two decades. The Court held that the petitions are premature since the constitutional amendment bill is yet to be sent to states for ratification after which the President's assent would come.

The PILs have been filed by former Additional Solicitor General Bishwajit Bhattacharya, advocates R. K. Kapoor and Manohar Lal Sharma and Supreme Court Advocates on Record Association [http://www.livelaw.in/challenge-121st-constitutional-amendment-scrapping-collegium-system-apex-court-agrees-hear-4-pils-august-25th/]. Senior Advocate Fali Nariman who appeared for the Supreme Court Advocates on Record Association argued that the question whether a bill violating basic structure of the Constitution could be challenged at this stage be referred to the Constitution Bench. But the Supreme Court dismissed the plea.

The Supreme Court Supreme Court Advocates on Record Association in their petition contended that “as a matter of historical record it must be added that almost simultaneously with the introduction and passage of the Constitution (One Hundred Twenty First Amendment) Bill No. 97C of 2014, in the Lok Sabha there was also introduced (in the Lok Sabha) on 11th August, 2014 the National Judicial Appointments Commission Bill No. 96 of 2014: (as a matter of fact the legislative Bill No.96 of 2014 was introduced even prior to the Constitution 121st Amendment Bill No. 97C of 2014).  The Legislative Bill was got passed in both Houses of Parliament by a voice vote taken even at a time when the provisions of Article 124(2) as originally enacted were in force (and even today continue to be in force) making the introduction, consideration and passing of the legislative Bill (the National Judicial Appointments Commission Bill No.96 of 2014) an exercise in futility and a nullity since with Article 124(2) as originally enacted in the Constitution remaining intact, there could be no introduction of or passing by Parliament of the legislative Bill known as the National Judicial Appointments Commission Bill 2014”

It is also contended that “the amending power under Article 368 of the Constitution is subject to the substantive limitations in that the basic structure cannot be altered or the basic features of the constitution destroyed.  This imposes a fetter on the competence of Parliament to amend the Constitution; and any amendment made in disregard of this limitation (it has been authoritatively held) goes beyond the amending power (e.g. Kihoto Hollohan vs Zachillhu And Others: 1992 (Supp) 2 SCC 651 at page 692-693 paras 63 to 65).  It has been authoritatively held by this Hon’ble Court (in a Series of judgments) that the independence of the Judiciary is part of the basic structure of the Constitution and hence unamendable”

The petition is filed on the following main grounds.

1. The proposed Constitution (One hundred and twenty first Amendment) Bill No. 97-C of 2014 as passed by the two houses of Parliament, by providing for a National Judicial Appointments Commission consisting of the Chief Justice of India; two other senior Judges of the Supreme Court next to the Chief Justice of India; the Union Minister in charge of Law and Justice; and two eminent persons to be nominated by a committee consisting of the Prime Minister, Leader of Opposition (or leader of single largest party in Lok Sabha) and the Chief Justice of India, takes away the primacy of the collective opinion of the Chief Justice of India and the two senior most Judges of the Supreme Court of India, next to the Chief Justice of India i.e. even if all three senior most judges of the Supreme Court of India collectively recommend an appointee, the appointment is liable to be vetoed by the other three members - one of whom is part of the executive (Minister in government) and the other two “eminent persons”) not selected unanimously but amongst the Prime Minister, CJI and leader of the Opposition in Lok Sabha.
2. Clause 3 of the proposed Constitution (One hundred and twenty first Amendment) Bill No. 97-C of 2014 as passed by the two houses of parliament introduces Article 124C in the Constitution of India as an integral part of the mode and manner of appointment of Judges which confers unbridled power to Parliament to regulate by ordinary law, inter alia, 'the manner of selection of persons for appointment' to the Higher Judiciary without any safeguards whatsoever and in particular without requiring Parliament to ensure at all times the Independence of the Judiciary as envisaged under the Constitution.  It has been held repeatedly by this Court that the doctrine of Basic Structure cannot be used to challenge ordinary legislation (1975 Supp SCC 1; 1996 3 SCR 721; 2006 7 SCC 1; 2010 11 SCC 1;). Therefore as per the law laid down by this Court, it would not be possible to challenge any law made under the proposed Article 124C on the ground that it results in the erosion of the Independence of the Judiciary thereby damaging the Basic Structure of the Constitution. Article 124C leaves open enormous scope for the Parliament, by ordinary legislation, to give primacy to the Executive or Veto powers to the Executive or other unchecked powers to the Executive for the appointment of Judges to the higher Judiciary.  Thus for instance, the second proviso to Sub-Clause 2 of Clause 5 and Sub-Clause 6 of Clause 6 of the proposed National Judicial Appointments Commission Bill No. 96-C of 2014, which has been passed as an ordinary Bill (and not as a Constitution Amendment Bill), provides that 'the Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation'. Not only does this very provision open possibilities for erosion of Independence of the Judiciary but such an ordinary law can even be easily amended to substitute for the words 'two members' the words 'one member' thus completely negating any effective role of the three senior most members of the Judiciary in appointment of Judges to the Supreme Court and the High Courts, and thus wholly transferring the power of appointment of Judge, of the Higher Judiciary to the Executive
3. The existing “guideline” in the form of the National Judicial Appointments Commission Bill, 2014 – also got passed by both Houses of Parliament – indicates quite plainly that if any two Members of the Commission (a Commission consisting of six Members – three sitting Judges and three non-Judge Members) do not agree to the recommendations of the three seniormost Judges of the Supreme Court of India for appointment, the appointment is not to be made (see second Proviso to Clause 5 and sub-clause (6) to Clause 6 of the Legislative Bill).
4. The criteria of suitability for appointment as a Judges is to be specified by “regulations” and these Regulations are to be made by “the Commission” where the three seniormost judges do not have a predominate vote.   This again is a total negation of the concept of the ‘independence of the judiciary and is violative of the basic structure of the constitution