Challenging validity of NJAC: SC refers Petitions to Constitution bench; refuses to grant interim stay on its operation

A three-Judge bench of the Supreme Court comprising of Justice A.R. Dave, Justice J. Chelameswar and Justice M.B. Lokur has referred to a larger bench, a batch of Writ petitions challenging the Constitutional validity of the National Judicial Appointments Commission Act.

The Bench also refused to grant an interim stay on the operation of NJAC, saying that the petitioners are free to raise such arguments before the larger Bench.

The Bench had reserved its verdict on March 24, after Attorney General Mukul Rohatgi had termed these petitions as “premature” and “academic” in nature. The AG had also contended that the methodology adopted by the Legislature in bringing the law to life cannot be brought to challenge before the Court.

Rohatgi had put forth this argument after the procedure adopted by the legislature was challenged. It was asserted by the petitioners that the NJAC Act was passed before the enabling Constitutional amendment and hence, the legislature did not have any power to pass the Act.

Rohatgi however submitted that, "Only end product can be examined by the courts and it is irrelevant that this Act was passed earlier and that Act was passed later…. Only an Act, after notification, can be tested in the court of law and not the procedures adopted by Parliament.”

The Supreme Court had said that it would proceed on the merits of the matter only after deciding whether the Petitions were maintainable or not.

Eight fresh Petitions, challenging the law, were filed earlier this year. The Petitioners were Supreme Court Advocates on record Association (SCAORA), R.K. Kapoor, Bhim Singh, Bishwajit Bhattacharya, Centre for PIL, Manohar Lal Sharma, Change India, Mathes J. Nedumpara and Bar Association of India.

The petition filed by SCAORA, through its secretary, Mr. Vipin Nair, and settled by Senior Advocate Fali S. Nariman, has challenged both the Constitution 99^thAmendment Act, 2014 which introduces amendments to Article 124 and 217 of the Constitution of India and the National Judicial Appointments Commissions Act, 2014.

The major contentions in this petition are the procedure involved in the passing of the two Bills. It has prayed for declaring the NJAC Act beyond the legislative competence of the Parliament, by declaring the 99^th Amendment Act as unconstitutional. Read a copy of the Petition here.

The Petition filed by Senior Advocate Bishwajit Bhattacharya states that the Supreme Court was “the only institution in the country which is fiercely and independently upholding the interest of the common man. Any attempt to dilute or damage its independence must be thwarted, rebuffed and repelled with a heavy hand”.

Earlier in August, a three Judge Bench of the Supreme Court, comprising 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, holding it is a “premature” challenge.

However, on being specifically requested by senior advocate Fali S Nariman, who represented the AoR Association, the court had noted in its order that “it would be open to the petitioners to approach this court at an appropriate stage and make all submissions on merits”.

It is this liberty granted to them by the Supreme Court, which is forming the basis for their renewed claim. Senior advocate Bishwajit Bhattacharya, who had earlier challenged the NJAC through a separate petition, still maintains the contention that since the cure seemed to be worse than the disease, it had to be challenged.

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 case here.

Read the Order here.