Nothing happens 'secretly' in collegium: Justice J S Khehar

The most common criticism that the collegium system was "opaque" was today trashed by one of the judges of the Supreme Court which strongly supported it saying nothing happened secretly as judiciary and the executive used to exchange their views in "black and white".

Analysing step-by-step the "Memorandum of Procedure" being followed in the collegium system, Justice J S Khehar, heading the five-judge Constitution bench, said, "It is ...clear, that there is a complete comity of purpose between the judiciary and the political-executive in the matter of selection and appointment of High Court Judges.

"And between them, there is clear transparency also. As views are exchanged in writing, views and counter-views, are in black and white. Nothing happens secretly, without the knowledge of the participating constitutional functionaries."Justice Khehar, in his judgement, dealt separately the three issues that included a plea seeking his recusal, reference of the petitions against the National Judicial Appointments Commission Act to a bench of either nine or more judges and the decision on merits.

Striking down the NJAC Act and the 99th Constitutional Amendment Act, he said that the composition of NJAC, to which the Chief Justice of India and two senior most judges of the Supreme Court would be members, did not provide "adequate representation to the judicial component" in the panel and were insufficient to preserve the primacy of the judiciary.

"I have arrived at the conclusion, that clauses (a)the CJI, Chairperson, ex officio and (b) two other senior Judges of Supreme Court as Members, ex officio, of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary... The same are accordingly, violative of the principle of "independence of the judiciary", Justice Khehar said.

On the inclusion of Union Law Minister as "ex-officio member of NJAC", Justice Khehar said that this inclusion "impinges upon" the principles of "independence of judiciary", as well as "separation of powers".

"I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex-officio Member of the NJAC.
Clause (c) of Article 124A(1), in my view, impinges upon the principles of 'independence of the judiciary', as well as, 'separation of powers'," he said.

Justice Khehar, who wrote 440 pages in the 1,030-page-long verdict, held the inclusion of two eminent presons as members of NJAC under clause (d)of Article 124A(1) of the Act as ultra-vires and violative of the "basic structure" of the constitution.

"....I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down," he said adding that if the inclusion of anyone in the NJAC is held to be "unconstitutional" then Article 124A will be rendered "nugatory, in its entirety".

He further said that Article 124A constituted the edifice of the Constitution (99th Amendment) Act, 2014 and its striking down would automatically lead to the "undoing of the amendments made to Articles 124 and others."

"In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby struck down in its entirety, as being ultra vires the provisions of the Constitution," Justice Khehar said.

He also said that the NJAC Act emanated from Article 124C (Power of Parliament to regulate procedures for appointment of the CJI and other judges) and it has no independent existence in the absence of the enabling constitutional amendments.

"Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 nis also liable to be set aside, the same is accordingly hereby struck down," the judge said.