NJAC intruded upon judiciary’s independence: Justice Khehar

New Delhi, Oct 16 (IANS) Striking down the National Judicial Appointments Commission Act on Friday, Justice Jagdish Singh Khehar said it intruded upon the independence of judiciary.

Terming as “unconstitutional and void” the Constitution’s 99th amendment that provides for the appointment of judges to higher judiciary, Friday’s order said its composition infringed upon the primacy of judiciary in judicial appointments.

Justice Khehar brushed aside the government’s contention to the contrary, and said the trashing of the 99th amendment would automatically restore the operation of collegium system.

In his separate judgment, Justice Khehar said that the presence of the chief justice and two senior-most judges immediately after him in the six-member NJAC, which has now been struck down, was “insufficient to preserve the primacy of the judiciary in the selection and appointment of judges to the higher judiciary”, including their transfer from one high court to another.

Justice Khehar said that the provision of the Constitution amendment (Clause (c) of the Article 124 A(1)) that provides for the presence of the union law minister in the NJAC as an ex-officio member was “ultra vires” of the Constitution as it “impinges upon the principles of independence of the judiciary” as well as “separation of powers”.

Nixing the provision (Clause (d) of the Article 124 A(1)) providing for two eminent persons on the NJAC, Justice Khehar said that the “inclusion of two eminent persons” as members of the NJAC is ultra vires the provisions of the Constitution for a variety of reasons and that the same was violative of the “basic structure” of the Constitution.

In his judgment, he said: “In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014, is liable to be set aside.”

“I have concluded, that with the setting aside of the impugned Constitution (99th Amendment) Act, 2014, the provisions of the Constitution sought to be amended thereby, would automatically revive, and the status quo ante would stand restored,” Justice Khehar said.

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