Bhattacharyya has contended that today collegium headed by the CJI is recommending the appointment and transfer of judges but a situation may arise when in the NJAC, the names moved by the CJI and two senior most judges would get vetoed by the law minister and another member."
New Delhi, Aug 19 - A plea was moved in the Supreme Court Tuesday challenging the constitutionality of the amendment paving the way for the judicial appointment panel in place of existing collegium system for the appointment of judges to the apex court and the high courts.
The petitioner, senior counsel Bishwajit Bhattacharyya, in his PIL said that both the National Judicial Appointment Commission and the constitutional amendment paving way for it (NJAC) were in violation of basic structure of the constitution which was absolute and unalterable and thus were unconstitutional.
Doctrine of separation of power and the independence of the judiciary are basic immutable features of India's constitution. These basic features (structure) of the constitution cannot be abridged or abrogated by the either the executive or the legislature, the PIL read.
The two bills, the PIL said, make frontal attack on the independence of the judiciary and on the doctrine of separation of power, both basic features of India's constitution. Such violence done to the basic structure of India's constitution is reminiscent of the dark days of emergency imposed on June 12, 1975.
Seeking the quashing of the National Judicial Appointments Commission Bill, 2014 and the Constitution (One Hundred And Twenty First Amendment) Bill, 2014, the PIL sought declaration that they are arbitrary, unconstitutional, and deface/defile/damage basic structure/feature of India's constitution.
Bhattarcharyya in his PIL contended that both the bills passed by parliament for setting up the NJAC and amending the constitution to do away with the collegium system were ultra vires of the constitution as they treaded on the doctrine of the separation of power and independence of judiciary - both basic immutable features of the Indian constitution.
Giving the specific instance how the independence of judiciary was susceptible under the NJAC, the PIL by Bhattarcharyya said that the commission would recommend the senior most judge of the apex court for appointment as Chief Justice of India provided if he was considered to be fit to hold the office.
The PIL says that the caveat if he is considered to be fit for appointment as CJI leaves a window of possibility of the seniormost judge getting superseded as had happened in the past when seniormost judges were overlooked for appointment to the top judicial post.A
Bhattacharyya has contended that today collegium headed by the CJI is recommending the appointment and transfer of judges but a situation may arise when in the NJAC, the names moved by the CJI and two senior most judges would get vetoed by the law minister and another member.
This, the PIL contends, would compromise the independence of judiciary.