Supreme Court Advocates-on-record Association vs. Union of India

By – Sonali Kumari

In The Supreme Court of India

Case nameSupreme Court Advocates-on-record Association vs. Union of India  
Date of judgement16th October 2015
citationAIR 2015 SC 5457
AppellantSupreme Court Advocates-on-record
RespondentUnion of India  
Bench of judgesPandian, S.R, Ahmadi, A.M., Verma, Jagdish Saran Punchhi, M.M., Yogeshwar Dayal Ray, G.N., Anand, A.S.
statutesArticle 124, Article 124A, Article 217, Article 222, Article 224A of Constitution

ABSTRACT

This case is related to the concept of the “primacy of judges” in judicial appointments, in Supreme Court Advocates-on-Record Association v Union of India, the NJAC judgment banged the 99th Constitutional Amendment, which seeks to exchange the Collegium system of judicial appointments with a National Judicial Appointments Commission, and it also violated the essential constitutional feature of judicial independence. According to this case, three claims are being raised, starting with the first, that the constitutionality of the 99th Constitutional Amendment cannot be satisfactorily adjudicated by the Supreme Court without determining that the case held by the Second Judges has the judicial primacy to be a part of the fundamental structure or on Article 124 of the Constitution; secondly, the claim raised was that all the five separate opinions within the NJAC Judgment didn’t do so,  and thirdly it was claimed that argument advanced by Arghya Sengupta in contrary to a majority of three judges within the NJAC judgment it was held that the judicial primacy is a component of the essential structure. Based on claims raised above it was said that any future attempt at changing the way of judicial appointments will have to stay faithful to the principle of judicial primacy.

INTRODUCTION

The case is predicated on the independence of the judiciary. This case is famously called the Second Judges Case because it helps to secure rule of law for the preservation of the democratic system and helps with the directive principles of separation of powers in the constitution. As we all know that Supreme Court is the head of the constitution where all the rights and structure of the constitution are preserved. Only on the judgements of the supreme court the appointment, transfer, and removal of judges can be done. Supreme Court safeguards the

essential structure of the constitution. Supreme Court Advocate on Record Association v. Union of India was one in every of the landmark cases which upheld the separation of powers and independence of the judiciary that forms the fundamental structure of the Constitution.

BACKGROUND OF THE CASE

As we all know that collegium is the system of appointment and transfer of judges which has evolved through judgments of the Supreme Court. The Supreme Court collegium comprising of four senior judges is headed by the justice of India.   Only after approval by the CJI and the Supreme Court collegium, the name of the appointed judge reaches the government. Upper judiciary judges are appointed only through the collegium system and the role is only encompassed by the government once the names are decided by the collegium. The government’s role is restricted to getting an inquiry conducted by the Intelligence Bureau if a lawyer is to be elevated as a judge in an exceeding state supreme court or the Supreme Court. Govt. is bound, under Constitution Bench judgments, to appoint them as judges once the name has been finalised as per the collegium choice.

FACTS OF THE CASE

  • A writ petition was filed before the supreme court in 2015 by the supreme court advocates record association and senior advocates challenging the constitutionally of the 99th amendment and the NJAC Act.24 as this petition alleged that the basic structure of the constitution is being violated by the NJAC by compromising judiciary’s independence.
  • It was declared that the CJIs recommendation on judicial appointments can be refused for cogent reasons by giving primacy to the executive in higher judiciary appointments.
  • CJIs powers over transfer and judicial appointments were given back by the majority verdict and it was said CJI only need to consult two seniors most judges as the questions referred in the second judge case in 1993 under 9 bench judges.
  • But the supreme court laid that there should be consultation of 4 senior judges for CJIs on judicial transfer and appointments.
  • Venkatachaliah commission was set up in 2000 for the formulation of judicial appointments by NDA government comprising of chairman, two senior judges, union minister for law and one member nominated by the president after consultation of chief justice of India.
  • In 98th amendment bill 2003, introduced by NDA government this report was followed aiming the establishment of national judicial commission.
  • As per another bill introduced by UPA government that is 120th amendment bill, 2013 it was provided that a commission will consist of 3 judicial and three non-judicial members for six-member judicial appointments giving equal sat to both.
  • Another bill was introduced by NDA government in 2014, that is 121st amendment bill passed by both the houses of parliament. NJAC act came into force in April 2015.
  • The national judicial appointment commission act and the constitution act 2014, was declared null and void by the court by this NJAC case as this amendment was against the principles of separation of powers and judiciary’s independence.
  • On 16th October 2015, the NJAC judgement was issued containing 5 opinions and the court split four to one, with four justices in majority and one justice in dissent.

ISSUES RAISED

  1. Whether the 99th amendment act 2014, was constitutionally valid?
  2. Whether NJAC act 2014, are violative of the separation of powers or not?

ARGUMENTS RAISED BY THE APPELLANT

  • It was argued by the appellant that the executive must separate from the functioning of judiciary in terms of ARTICLE 50 of the constitution.
  • Appellant argued for the minimisation in interference of executive in judiciary appointment and the recommendation of CJI should not be ignored.
  • CJIs passive and uninvolved status has proved to be counter productive in the judiciary appointment procedure as the power of president has made the CJI a passive body instead of active participant.
  • Independence of judiciary is being strangulated by the executive superiority and will result in erosion of a free and fair justice.
  • By the impugned constitutional amendment, the independence of judiciary has been compromised.
  • The responsibility of the chief justice of the NJAC has done away by the articles 124 and 217.

ARGUMENTS RAISED BY THE RESPONDENT

  • A motion has been filed by the UNION OF INDIA in the court asking the validity of two precedents which are directly relevant to the case.
  • A higher judiciary will only be appointed if a candidate is recommended by five of six members of NJAC commission.
  • It was contended that the structure of the constitution is preserved by the impugned provisions.
  • Greater autonomy to the president in the appointing process has itself been granted by the constitution.
  • The allowances and salary has also been fixed by the constitution ang parliament cannot reduce the quantum of salary and allowances even by any unanimous bill.

RELATED PROVISIONS

Article 124 A: under this provision, it is said that the NJAC commission consists of the chief justice of India, the two most senior judges of the supreme court, union minister charge of law and justice, and lastly two eminent persons nominated by the committee.

Article 124 B: Functions of NJAC has been provided under this provision.

Article 124 C: under this provision, the regulation of the procedure for appointment of a chief justice and other supreme court and the high court have been provided.

Article 217: Appointments and conditions of the office of a high court judge have been given under this provision.

Article 222: as said under this article the president may transfer a judge from one high court to another.

Article 224 A: the chief justice of a high court may at any time with the consent of president or on the request of any person who has held the office of a judge of that court or any other court to sit and at as a judge of the high court of that state.

JUDGEMENT

The Supreme Court with a majority of 4:1 gave the judgement in favour of petitioners and held that Article 124A is that the most vital article of the 99th amendment. If Article 124A is struck the complete amendment would be undone. The Court found that clauses a and b of Article 124A don’t provide adequate representation to the judicial component of the National Judicial Appointments Commission which is insufficient to preserve the primacy of judiciary and hence violative to the independence of the judiciary which forms the essential structure of the Constitution. Similarly, Article 124A (c) and (d) are ultra vires of the Constitution thanks to the inclusion of union minister answerable of law which violates the separation of powers which forms the fundamental structure of the Constitution. The Supreme Court held that the 99th Constitution amendment Act 2014 and therefore the national judicial appointment commission act 2014 was unconstitutional and void. The system of appointment of judges to Supreme Court, High Court, and appointment of justice of India and transfer of judges should be carried in keeping with the position before the 99th amendment. All five judges gave separate judgement and Justice Chalemeswar upheld the validity of the amendment.
The court has struck down The Constitution (Ninety-ninth Amendment) Act, 2014 and also the National Judicial Appointments Commission Act, 2014, declaring them to be unconstitutional and void with a majority of 4:1. The court has also rejected the respondent’s plea for relation to a bigger bench for the reconsideration of the Second and Third Judge’s cases [(1993) 4 SCC 441, and (1998) 7 SCC 739, respectively]. The collegium system for appointment and transfer of judges has been restored.

CONCLUSION


The judgement is flawed at the start. an oversized part of the bulk judgement is at risk of being rendered otiose. As MM Punchhi, J. has realized an outsized part of the bulk decision is obiter because it wasn’t supported the reference. The court has answered questions it absolutely was not asked. Hence the remainder of the judgement is obiter.

Further, this judgement virtually re-writes the constitution. The word ‘consultation’ can never mean ‘concurrence’. this might be a shot to implement the 121st Law Commission recommendation which never got off the bottom. Hence, it’s not the duty of the legislature to try and do the work of the legislature.

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