No law in the making can be challenged in court until it gets the President’s assent and yet both the petitions are by the lawyers well-conversant with this handicap. One is former Additional Solicitor General Bishwajit Bhattacharya and another Delhi lawyer R K Kapoor who wants to be petitioner-in-person.
Bhattacharya has contended that the two Bills were ultra vires to the basic structure of the Constitution since the Doctrine of separation of power and the judiciary were basic immutable features of India’s Constitution.
Both have expressed apprehension of the NJAC superseding the senior-most Supreme Court judge from becoming the Chief Justice of India, misusing the provision that says that the person will be recommended “if he is considered fit.”
They contended that this would severely compromise with the independence of the judiciary as all it requires is for two commission members, even the non-judge members, to declare the judge as not fit to supersede him.
In his petition, Bhattacharya said: “The design of the executive and the legislature is writ large: to switch back to the days of super session of former Justices Shelat, Grover and Hegde.”
“A combined reading of Articles 124, 127, 128, 217 and 222 reflects that it is the Chief Justice of India who ensures the independence of the Judiciary by being completely involved in every appointment of Supreme Court judges and High Court judges and in every transfer of judges from one High Court to another.”
“This power is now being shifted to the NJAC and the very possibility of the CJI along with two senior-most judges of SC being vetoed by the executive would be destructive of the independence of the Judiciary and the doctrine of separation of power, both basic features of India’s Constitution.”
Advocate Kapoor pointed out that the Bills were brought on the ground that the collegium system of judges appointing the judges had flaws but without disclosing which flaw warranted interference of the executive.
Noting that merit and accountability of candidate as a judge is already there in the existing collegium system since everything is expressed in writing and final conclusion arrived by the collective wisdom of the team of judges, the petition says the law laid down by the Supreme Court under Article 141 and 144 (on collegium) is the law of the land that cannot be interfered with either directly or indirectly.
It further stressed that the so-called eminent persons on the commission cannot have an assessment of the overall performance of an individual, pointing out that an eminent person from Delhi will be ill-equipped to form opinion on a judge of the Kerala High Court for elevation to the Supreme Court.
