A Critique of the NJAC Judgement
| Date | 01 August 2015 |
| Author | Justice A.K. Patnaik |
| DOI | 10.1177/2277401720150102 |
| Published date | 01 August 2015 |
| Subject Matter | Article |
A CRITIQUE OF THE NJAC JUDGEMENT
Justice A.K. Patnaik*
In its NJAC Ju dge ment , the Supreme Court by majority struck
down the Constitution (Ninety-Ninth Amendment) Act, 2014 as
well as the National Judicial Appointments Commission Act, 2014
as ultra vires the Constitution. The sole dissenti ng Judge, Justice
Jasti Chelameswar, however, took the view that the Constitution
Amendment Act was constitution ally valid but did not express any
opinion with respect to the constitutional validity of the NJAC Act.
In this piece, the author, a former Supreme Court judge, comments
on the merits and demerits of the majorit y and minority views in
the NJAC Judgement.
I. Introduction
The Constitution (Ninety Ninth Amendment) Act (Constitution
Amendment Act) was passed by Parliament in exercise of its powers to
amend the Constitution under Article 368 of the Constitution. The majority
of the judges in Kesavananda Bharati v State of Kerala1 have held that
under Article 368 of the Constitution, Parliament has power to amend any
part of the Constitution but cannot alter the basic structu re or framework
of the Constitution. Independence of the Judiciary is a basic structure or
framework of the Constitution2 and, therefore, the Constitution Bench in
the NJAC case 3 was called upon to decide whether Parliament while
enacting the Constitution Amendment Act and the National Judicial
Appointments Commission Act 2014 ( NJAC Act) affected the independence
of judiciary.
* Former Judge, Supreme Court of India.
1 Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
2 Supreme Court Advoca tes on Record Association and ors v Un ion of India (1993 ) 4
SCC 441 [421]; Registrar (Admin) High Cour t of Orissa Cuttack v Sisir Kanta Sa thpathy
(1999) 7 SCC 725 [1].
3 Supreme Court Advoca tes on Record Association and a nr v Union of India (2016) 5
SCC 1.
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