AS ASSERTION OF PRIMACY

It is extraordinary that there should be near unanimity in the country that the present system of
judicial before the Supreme Court. It is no surprise that a five judge bench has struck down
appointments that was put in place in 1993 is deeply unsatisfactory and yet the most significant
legislative effort to reform it should fail the constitution (99 Amendment) Act, 2014, by which
the government established a National Judicial Appointment commission to select member of
higher judiciary. There were doubts whether the composition of the NJAC, especially the
inclusion in it of union law minister and two eminent person appointed by the government,
would survive judicial scrutiny. For, the law also gave any two members a veto over all
decisions, raising the question whether the judicial members could be overruled by the executive
representatives. The attorney general could not convince the court that the amendment along
with the NJAC Act, was aimed at restoring the system of checks and balances which, according
to the government, was lost after the supreme court created the collegiums system of
appointments. The core question was whether the new institutional mechanism to appoint judges
impinged on the independence of judiciary, a basic feature of constitution. The court has ruled
that it does. Justice J.S. Khehar, writing the main judgment, has held that the clauses provided in
in the amendment are inadequate to preserve primacy of judiciary. The inclusion of law minister
in the body impinged on both the independence of the judiciary and the doctrine of separation of
powers.

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