GROUNDS

A).    Because that the collegium system which was started in the year of 1993 after the judgment rendered by the Constitution Bench of 9-judges of this Hon’ble Court in Supreme Court Advocates-On-Record Association and has been continuing for the last 21 years has discharged all its duties/functions to the satisfaction of the citizens, intelligentsia and civil society and the decision taken by the collegium for the appointments of judges of Supreme Court and 24 High Courts have never been questioned by any public spirited institution except on isolated occasion. In these circumstances the respondent has utterly failed in disclosing the aims and objects for replacing the collegium system with NJAC and carrying constitutional amendments in various Articles through The Constitution (One-Hundred and Twenty First Amendment) Act, 2014.

B).    Because from a reading of un-amended Article 124 of the Constitution of India, it is manifest that every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose, which clearly mandates that the appointment has to be made to the President only and the President in making the appointments of the judges of the Supreme Court and High Courts cannot ignore the advice and suggestion if any given by the Council of Ministers. In these circumstances when the ultimately appointments of the judges of the Supreme Court and High Courts had to be done on the advice of the Council of Ministers, there was no occasion for the respondent to replace the collegium system, which consisted five-senior most judges of the Supreme Court including the Chief Justice of India who used to act on the basis of suggestion, advice and recommendations made by the concerned Chief Justices of the High Courts.

C).    Because from a bare reading of the NJAC and Constitution Amendment Act, 2014 it goes without saying that by enacted these two Acts, the respondent has sought to achieve political purposes inasmuch as that no reasons have been given as to why two eminent persons have to be inducted as Members of NJAC and one of them should belong to Scheduled Castes, Scheduled Tribes, Other Backward Class, Minorities or Women. If the appointments of the judges in the Supreme Court and in the concerned High Courts after the collegium system are perused, during the last 21 years the representation of Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and Women are always followed. In such circumstances, there is no need of having two eminent persons in NJAC and that two if these two eminent members of NJAC defer from other four members, the entire selection process will collapse leading two unimaginable delay in appointments of judges which would ultimately delay the process of rendering justice in court and it would be definitely violative of Article 21 of the Constitution of India as a speedy justice has been repeatedly held as one of the fundamental rights of the citizens of the country.

D).    Because there is no provision in both the aforesaid Acts in 2014 that the opinion given by the Chief Justice of India should be taken as one of the guiding factors in the selection of the judges to the superior courts, inasmuch as that the other members of the NJAC can ignore the opinion of the Chief Justice of India and can appoint the judges in superior court without the consent of the Chief Justice of India which will lead to an unimaginable situation to uphold the credibility, integrity and dignity of this institution which has been so far given highest regard by the citizens of the country and has been looked as saviour of the fundamental rights of the citizens of the country. This new system which has been introduced by the two impugned Acts is nothing but remind the legal fraternity of two occasions of super sessions resorted by the Govt. of India in appointing the Chief Justices of India.

E).    Because the entire NJAC Act, 2014 dealing with the appointments of the judges of the superior courts is undemocratic and thus unconstitutional and against the ethos of this country inasmuch (i). the selection process of the two eminent persons forming the part of the Commission is undemocratic and not within the line of the Constitution as much as that the selection process is controlled and governed by few selected, (ii). That the minority of two members of the commission have been given veto power over the majority of the remaining four members of the Commission who may form majority opinion, (iii). In the NJAC Act, 2014 no qualification/ criteria has been fixed for the selection of the two eminent persons to be nominated as members of the Commission, and has been left at the whims of few, which itself is arbitrary and undemocratic.

F).    Because in order to appreciate the above contentions of the petitioner, it is necessary to consider certain provisions of The National Judicial Appointments Commission Act, 2014 (hereinafter referred to as NJAC Act, 2014) read with One Hundred and Twenty-First Amendment) Act, 2014 (hereinafter referred to as 121^st Amendment Act, 2014) . As per the provisions of Section 2(a) of the NJAC Act, 2014 chairperson means the chairperson of the commission. As per Article 124 (a) of NJAC Act, 2014 the Chief Justice of India will be chairperson, ex-officio. The National Judicial Appointments Commission shall consist of the Chief Justice of India, Chairperson, Ex-officio, two other senior judges of the Supreme Court, Members, Ex-officio, the Union Minister, Incharge of Law & Justice, Member, Ex-officio and two eminent persons to be nominated by the Committee consisting of Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House or the Leader of single largest opposition party in the House of the People-Members. It is further provided that one of the eminent persons shall be nominated from amongst the persons belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities or Women.

G).    Because it has further been provided under Section 5(6) that the Commission shall not recommend a person for appointment under this section if any two members of the Commission do not agree for such recommendations. From the holistic reading of this provision, it is obvious that the recommendations of the Chief Justice of India has been virtually reduced to mere suggestion which is contrary to essence and spirit of the law laid down by Constitution Bench of 9-Judges of this Hon’ble Court in the case titled, ‘Supreme Court Advocates-on-Record Association Vs. Union of India, (1993) 4 SCC 441’ wherein this Hon’ble Court after having considered all the provisions of the Constitution of India including the earlier judgments delivered by Constitution Benches has held that the views of the Hon’ble Chief Justice of India must have primacy. It has further been laid down that the concept of primacy to be accorded to the views of the Chief Justice of India has three elements, namely, (a). primacy as ‘paterfamilias’ of Indian Judiciary, (b) primacy to be accorded to his views against the consultees mentioned in Articles 124(2) and 217(1), and (c) primacy in the sense that the opinion of the Chief Justice of India would be binding on the President, i.e. the Executive.

H).    Because that no provisions have been made to judge the eminence of two members which are to be nominated by the Committee inasmuch as that neither any qualification has been prescribed nor it has been provided as to in which filled he is eminent. In this circumstances if the aforesaid two members which are to be nominated by the committee would be in a position to wriggle out. The recommendations which would be made as per the provisions of Section 6(2) by the Chief Justices of concerned High Courts and the advice of the Chief Justice of India who is the head of the judiciary and the other two senior most judges of the Supreme Court of India virtually negating the advice/views of the judiciary which is an essential element for the appointments of the judges of the higher courts.

I).     Because besides this there are only six members in the NJAC. If there is a disagreement between the members of the Commission inasmuch as in case there is split opinion among equal number of members, then the whole exercise of appointment of judges in the higher courts would also become redundant. This process is likely to jeopardize the appointments of judges in higher courts resulting into further delay in rendering justice to the common persons of the society who are already suffering from delaying process of justice.

J).    Because that The Constitution (One Hundred and Twenty-First Amendment) Act, 2014 is also equally inadequate, defective, ultra virus to the present judicial enactments in Law. Section 3(d) in newly amended Article 124A (3)(2) which provides that, “No act or proceedings of The National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.”

K).    Because that Section 6(7) of the NJAC dictates that Commission shall have to elicit views meaning recommendations in writing of the Governor and the Chief Minister of the State concerned before making such recommendation in such manner as may be specified by regulations. This reduces the credibility of a High Court to a political office of the ruling party or parties of that state.