ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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National Judicial Appointments Commission

A Critique

An assessment of the new law introduced to appoint judges argues that it will make the judiciary subservient to the executive and thus throws a fundamental challenge to the Constitution and Indian democracy. The long-pending demands for transparency and accountability of judges and for making the judiciary more representative have been forgotten in these new bills.

[This article was written and edited prior to the Supreme Court’s refusal to hear the petitions against the two bills discussed in here – ed.]

The National Judicial Appointments Commission (NJAC) Bill, 2014 and The Constitution (One Hundred and Twenty First Amendment) Bill, 2014 were introduced in the Lok Sabha on 11 August 2014. Even before the ink is dry on the two bills, petitions have been filed in the Supreme Court challenging their constitutionality on the ground that they have violated the basic structure of the Constitution. The petition filed by the Supreme Court ­Advocates-on-Record Association states that Parliament does not have the power to change the basic structure of the Constitution which it has done and hence the government should be restrained from sending the amendment bill to the states for ratification. The NJAC Bill is also challenged on the ground that when it was introduced, Article 1241 and Article 217 were in full force and effect and no legislation can go contrary to the Constitution. The two bills are therefore a stillborn law, null and void.

The challenge is a rather unusual one, inasmuch as for the first time a bill is challenged before it has actually become law. There was a similar challenge to the bill creating Telangana before it became a law and the Supreme Court rejected the challenge on the ground that only a law could be challenged and not a bill.

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