SC Dismisses Review Petition Against NJAC Judgment [Read Order]

The Supreme Court has dismissed the review petition filed against the judgment dated October 16, 2015, of the Constitution Bench that struck down the National Judicial Appointments Commission (NJAC) Act of 2014 and upheld the collegium system for appointment and elevation of high court and apex court judges.

The review filed by National Lawyers’ Campaign for Judicial Transparency and Reforms was considered by a bench of CJI Ranjan Gogoi, Justices M B Lokur, Kurian Joseph, A M Khanwilkar and Ashok Bhushan.

In the order passed on November 27, the bench stated that the petition was delayed by 470 days, for which no satisfactory explanation was offered. "The review petition is liable to dismissed on the ground of delay alone. Even otherwise, we have carefully gone through the Review Petition and considered the merits. We did not find any merit in the same", stated the order.

The NJAC amendment was struck down by a 4:1 majority, with Justice Chelameswar dissenting.

The review was sought for, inter alia, on the following grounds:

(1) The mandate of Article 32 and the petitions there under are confined to the infringement of the fundamental rights of the persons as expounded in Part-III of the Constitution, and not for any other purposes, including the so-called infringement of the basic structure of the Constitution;

(2) That in Kesavananda Bharti, the Supreme Court went on to discuss the concept of basic structure of the Constitution beyond what was required. In certain other judgments, namely, Minerva Mills v Union of India [(1980) 2 SCC 591], Madras Bar Association v Union of India [(2014) 10 SCC 1] and the NJAC case too, the fact that the concept of basic structure was evolved with reference to a plea for enforcement of fundamental rights was completely lost sight of and a new jurisdiction founded that a challenge to the constitutionality of a Constitution amendment or an ordinary Act of Parliament will lie under Article 32 of the Constitution, without there in existence a ‘person aggrieved’ and he claiming violation of his fundamental rights by virtue of the Constitution amendment or the Act of Parliament.

(3) The net effect of the judgments in judges-2, judges-3 cases and the NJAC case is the unkindest cut of the concept of separation of power at its very root, with the court assuming the role of both the Parliament and the executive, all at once. The judgments in judges-2 and judges-3 cases and the above petitions have resulted in a ridiculous scenario where Articles 124 and 217 of the Constitution are to be read diametrically opposite to what they state, which has meant cutting the concept of judicial review at its very root.

(4) The fundamental principle of natural justice - no one can be judge in his own cause – stands violated. It is a fundamental principle that where a judge is biased, even where such bias is non-conscious, sub-conscious or unconscious, as in the instant case where former Chief Justice JS Khehar would not have even in the wildest of his dreams ever thought of himself being a member of the collegium writing a judgment so as to secure a place for himself.