New Delhi: As Supreme Court on Friday struck down the Constitution’s 99th amendment putting in place the NJAC and the NJAC Act, 2014, Justice Jagdish Singh Khehar said it intruded upon the independence of judiciary and primacy of chief justice of India in appointments to higher judiciary based on the collective wisdom of collegium of judges.
“ the matter of appointment of judges to the higher judiciary, as also, in the matter of their transfer, primacy in the decision making process, inevitably rests with the chief justice of India. And that, the same was expected to be expressed, on the basis of the collective wisdom, of a collegium of judges,” he said, rejecting the government’s and others contentions to the contrary. 
In his separate judgment, he reiterated that in the matter of appointment of judges to the higher judiciary, and also, in the matter of transfer of chief justices and judges from one high court to any other high court, under articles 124, 217 and 222, the CJI’s primacy is liable to be accepted as an integral constituent of the above provisions as originally enacted.
Justice Khehar said 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.
Rejecting the government’s contention that the presence of these three would ensure the primacy of judiciary, he said that even if the three consider a nominee to be worthy for appointment, this ay be blocked by the exercise of veto by any two members including two eminent people.
Describing such a possibility as “out-rightly obnoxious”, Justice Khehar said: “The reason to describe it as being obnoxious is this – according to the learned attorney general, ’eminent persons’ had to be lay persons having no connection with the judiciary, or even to the profession of advocacy, perhaps individuals who may not have any law related academic qualification, such lay persons would have the collective authority, to override the collective wisdom of the chief justice of India and two judges of the Supreme Court of India.”
The instant issue, Justice Khehar said would be “demonstrably far more retrograde”, when the union law and justice minister also supports the unanimous view of the judicial component (CJI and Two Judges), because still the dissenting voice of the “eminent persons” would prevail.
“It is apparent, that primacy of the judiciary has been rendered a further devastating blow, by making it extremely fragile,” he said, noting that the so-called primacy of judicial members in NJAC on their strength (three out of six) could be rocked by any two members blocking even their unanimous recommendations.
Justice Khehar also held the provision of the constitution amendment providing for the law minister’s presence in the NJAC was “ultra vires” of the constitution as it “impinges upon the principles of independence of the judiciary” as well as “separation of powers”.
He also held the clause providing for two eminent persons on the NJAC as ultra vires of constitutional provisions of the Constitution for a variety of reasons and violative of its “basic structure”.
Brushing aside the government’s contention to the contrary, Justice Khehar said that the trashing of the 99th amendment would automatically restore the operation of collegium system.