Challenge to 121st Constitutional amendment scrapping Collegium system: Apex Court agrees to hear 4 PILs on August 25th

An apex Court Bench headed by CJI R.M. Lodha agreed to hear on Monday, a batch of four petitions challenging the 121st Constitutional amendment, which provides for a new mechanism for appointment of Judges in higher Judiciary and will lead to scrapping of the collegium system prevalent for the past two decades.

Seeking the quashing of the National Judicial Appointments Commission Bill, 2014 and the Constitution (One Hundred and Twenty First Amendment) Bill, 2014, the PIL reportedly sought declaration that they are "arbitrary, unconstitutional, and deface/defile/damage basic structure/feature of India's constitution."

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.

The PIL alleges, "Doctrine of separation of power and the independence of the judiciary are basic immutable features of India's constitution. These basic features (structure) of the constitution cannot be abridged or abrogated by the either the executive or the legislature….The two bills make frontal attack on the independence of the judiciary and on the doctrine of separation of power, both basic features of India's constitution. Such violence done to the basic structure of India's constitution is reminiscent of the dark days of emergency imposed on June 12, 1975."

Adv. R.K. Kapoor reportedly submitted: “The Constitution itself recognizes a clear demarcation separating the judiciary from the executive under Article 50 of the Constitution which is the underlying strength for a sound judicial system.

It would be relevant to point out here that Article 50 of the Directive Principles of the State Policy under the Constitution is not only applicable to the lower judiciary but is also applicable to the higher judiciary as the doctrine of separation of power and the independence of the judiciary were basic immutable features of the Constitution.”

Former Additional Solicitor General Bishwajit Bhattacharya has asserted that the Constitution empowers the Chief Justice of India to take a decision in every appointment of Supreme Court and high court judges and in every transfer of judges from one high court to another. He says, “This power is now being shifted to the NJAC and the very possibility of the CJI along with two senior-most judges of the Supreme Court being vetoed by the executive would be destructive of the independence of the judiciary and the doctrine of separation of power, both basic features of India’s Constitution”.

The Constitution (120th Amendment) Bill, 2013, provides for setting up of a Judicial Appointments Commission by inserting Article 124 (A) in the Constitution and amending Articles 124(2), 217(1) and 222(1). The structure and functions of the proposed commission are provided in the JAC Bill. The proposal approved by the Cabinet provides for the new Article 124A of the Constitution of India, which will define the composition of the JAC. Article 124B will identify its functions.

NJAC will be the authority for appointment of Chief Justice and Judges of the Supreme Court and High Courts. It will also have the authority to initiate transfers of High Court Judges. The bill states that before recommending a name for appointment as a judge of the HC the commission must take the view of the chief minister and the governor of the concerned state in writing.

Read the National Judicial Appointments Commission Bill, 2014 and The Constitution (One Hundred and Twenty-First Amendment) Bill, 2014, here.

Read more news about the Bills proposing the change in the appointment mechanism here.