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Questions of Constitutionality
The National Judicial Appointments Commission system for appointing judges is unconstitutional for four reasons. There is potential for its misuse as appointments to the higher judiciary will be controlled by the executive branch of the government. It suffers from the vice of arbitrariness as there is no way to determine who an "eminent person" is. The veto powers given to any two members also make it susceptible to misuse. Finally, there are concerns about maintaining the independence of the judiciary because the high courts and the Supreme Court examine the validity of actions taken by the executive branch as well as the legislature.
The Supreme Court of India is aware of the challenge to the constitutional validity of the Constitution (99th Amendment) Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014.1 The new framework provides for an NJAC headed by the chief justice of India (CJI), two other judges of the Supreme Court, the union law minister and two “eminent persons” to be appointed by a collegium consisting of the Prime Minister, the CJI, and the leader of the opposition in the Lok Sabha. The article focuses on examining why the NJAC and the 99th Amendment Act are unconstitutional. It does not examine the question of whether the collegium system of appointing judges was desirable or better than the legal and constitutional framework of the NJAC. The NJAC may be a desirable step towards greater transparency in the appointment of the judges, but the legal and constitutional framework envisaged in both the acts violates constitutional provisions.
Arbitrariness in Appointment
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