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An Analysis of the National Judicial Appointment Commission ‘The Verdict’

Tejpal Singh Rathore, Student, Gujarat National Law University, Gandhinagar

ABSTRACT

Democracy, Law and Politics are subjects that are most difficult to understand and comprehend. This is all the more exemplified in a nation as diverse as ours. On 16/10/2015 the Hon. Supreme Court of India by a majority of 4:1 struck down the 99th constitutional amendment act 2014 as unconstitutional, which provided for The National Judicial Appointment Commission. The judgement is more significant and historic in a sense as it was hearing a constitutional amendment after 35 years. The apex court of the country, the Hon. SC reiterates the principle of independence of judiciary and thus concluded it cannot taken away in any condition. A mixed response can be seen among political thinkers and eminent persons; some termed it as “judicial arrogance” instead of “judicial independence”, while some as a remarkable step, as judiciary has to be independent of executives. Judiciary is one of the pillars on which edifice of the constitution is built. The judiciary seeks to ensure that all the organs of the state are within its powers, thereby ensuring rule of law. We as a common man expect justice from judiciary and fight till the apex court of the country, thereby it becomes a matter of paramount importance that judiciary is transparent and accountable to people of the state. Martin Luther King Jr. Said “our lives begin to end the day we become silent about things that matter”. In order to understand, this article attempts to present a holistic picture of possible academic arguments and an integrated and comprehensive approach toward both the aspects.

Introduction

India, the world’s largest democracy, a land of diversity in terms of religions, language, dialects, cultures and customs, after nearly two hundred years of British Raj, broke off the shackles from colonialism. And finally on 26th of November 1949, adopted its fundamental law, the supreme law, “the Constitution of India” and thereby, established rule of law. To secure stability and prosperity in any society there is a need of powerful, competent and independent judiciary. So our constitution provides for a separate and independent judiciary from the executives.[i] And it does reflect the will of framers of constitution when Dr. B.R. Ambedkar responds to the concerns of the members of constituent assembly that;

            “There can be no difference of opinion in the house that our judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects can be secured “.[ii]

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Hon. Supreme Court on 16th October 2015 struck down the National Judicial Appointment Commission Act, 2014 and the constitution (One Hundred and Twenty First Amendment) Bill, 2014. The inexplicable hurry with which the Bill had been passed in the parliament, and especially so in the background of lack of public debate on the issue, further stands testament to this. The primary reasoning behind striking down the Constitution (Ninety-Ninth Amendment) Act 2014 by the Hon. Supreme Court seems to be independence of the judiciary. The constitution (Ninety-Ninth Amendment) Act, 2014 passed by lok Sabha on 13 August 2014 and by Rajya Sabha on 14 August 2014. Subsequently the constitutional amendment bill was ratified by 16 of the state legislatures in India. The president of India Mr. Pranab Mukherjee gave his assent to the same on 31st December 2014.[iii] The NJAC Act, 2014 after duly receiving assent of the president of India came into force from 13th April 2015; making a new history in judicial appointment system, which would have replaced the two decade old collegium system. The NJAC would have been responsible for appointments in the higher judiciary in India; had it not been struck down by Hon. Supreme Court of India. The main object of the Judicial Appointments Commission Bill of 2013 was to ensure transparency and equal participation of both executive and judiciary whereby, there would be proper system of checks and balances.  Bringing in the new system of judicial appointment was a need of hour. It was the will of the executives to bring in transparency and accountability in the two decades old judicial appointment system which cannot be negated. One of the questions that arise on the enactment of the Act is whether the Judicial Appointments Commission can overcome the drawbacks of Collegium system. As per the text of amendment functionally and structurally, the NJAC is perpetuating many of the basic deficits and perils of the collegium in a different manner. Judges, who are the ultimate authority to give justice to the people of the country, should not only be a man of wisdom and knowledge but also an unbiased and have competence to seat on the prestigious position. To ensure the same the new law which brings into composition a little widened participation from civil society and executives as well.

The composition of the National Judicial Appointment Commission according to the amended provisions would have been as follows;[iv]

  • Chief Justice of India (Chairperson, Ex Officio)
  • Two other senior most judges of Supreme Court next to the chief Justice of India- Ex Officio
  • The union minister of Law and Justice- Ex Officio
  • Two eminent persons

Two eminent persons would have been nominated by a committee consisting of the[v]

  • Chief Justice of India
  • Prime minister of India
  • Leader of opposition in the Lok Sabha (provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.)

The background

Time flies and so do we mould ourselves accordingly. The judicial appointments in India had undergone a sea change from the pre-independence era to the post independent era till present. We are growing and still developing, continuous progression, dialogue among various organs of the state and change is a key aspects of any democracy to survive. The whole debate of judicial appointments boils down to a question- WHO IS TO JUDGE WHO JUDGE US. Under the Government of India Act, 1919 and subsequent Government of India Act, 1935 appointments in the judiciary were the prerogative of the crown with no provision to consult chief justice in the process of appointment. According to our constitution Article 124 and 217 deal with appointment of judges in the Supreme Court and High Court respectively. Article 124(2) read as

            “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 and shall hold office until he attains the age of sixty five years:                                                                       Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted”.[vi]

Our constitution has provided that judiciary must be consulted when appointing judges however, with course of time the term “CONSULTATION” has come under intense scrutiny by the Supreme Court. The origin of judicial appointment commission dates back to the landmark case of S. P. Gupta v. Union of India[vii](herein after first judges case). There were many issues before Supreme Court, The major issues amongst other issues relating to transfer of judges was whether the opinion of the Chief Justice was to be given primacy over other constitutional functionaries and whether the President was bound by the advice of the Chief Justice in matters of judicial appointment.

The judgement was in favour of executives and the Hon. Justice P.N. Bhagwati stated that “the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Court and of the Supreme Court as the Central Government may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government”.[viii] It was also decided that the President could, with reasonable justification, refuse judges’ names as recommended by the CJI. This gave Executive greater power than the Judiciary in the appointment process.

Further, due to excessive interference by executives in the appointment process “collegium system” came about as a result of public interest litigation by the lawyers association in the case of S.C.Advocates on Record Association v. Union of India[ix](herein after Second Judges Case). A Nine-Judge Bench of the SC reversed the decision in the First Judge’s Case and created the Collegium System. The concluding (and majority) verdict by Justice Mr. J.S. Verma, on October 6, 1993, stated in law, that the CJI must be given the primary role in judicial appointments and also the Chief Justice shall be the “Appointing Authority” and the President a “Consultee” only. According to the judgement Chief justice of India and two senior most judges next to CJI represent a collegium that is responsible for appointing judges.

In 1998, a presidential reference was made to the Supreme Court on issues arising out of the Second Judges’ Case.[x] And this is known as “third judges’ case”. In this case the position was more or less same however, the compositions was enlarged to address the allegations of arbitrariness of chief justice in appointment process and concerns of “error and disagreement”. The concept of primacy of judiciary (collegium) over executives was again strongly reinforced. And it cemented the Supremacy of the Judiciary in the appointment and transfer of judges.

Now in the “Fourth Judge’s Case” (the 2015 SC Judgment) has interpreted Article 124 and Article 217 of the Constitution only to uphold the ‘Exclusivity’ of the Chief Justice in the matter of appointment of judges, excluding the role of the President almost entirely.

Now the process of interpreting the word “consultation” which eventually leads to the establishment of collegium system has come under sharp criticism from various intellectuals. One of the most prominent criticisms against the verdict has been (as has been voiced by senior veterans of the legal fraternity) that the rules of interpretation do not allow the judiciary to interpret the law in a manner which is inconsequential and ultra-vires to the intention of the Constituent Assembly.[xi] The critics argue that our Constitution provides for the appointments to be made by the President in consultation (as mentioned above) with the Chief Justice of India and that the NJAC Verdict is the dire opposite of this provision. The forceful contention of learned Attorney General of India is that the scheme of the Constitution did not envisage primacy of judiciary but only mandatory consultation with the CJI. Thereafter, the verdict states that the interpretation was not based solely on the word ‘consultation’ but on scheme of independence of judiciary. Another one is that some critics termed it as a latest episode in the long running drama of “institutional mistrust”.[xii]

Some Premises of the VERDICT and reasons for criticism.

It has been said that we cannot build foundations of a state without rule of law. Judicial pronouncements are always based on some principles of law, premises which governed its course. There are four underlying basis in the NJAC verdict;

  1. To protect the independence of judiciary it has to be the exclusive authority of judges. The major issue before the Hon. Supreme Court was that whether judges should have exclusive authority in the process of appointment. The participation even minimal of the executives or civil society will compromise judicial independence.[xiii] The assumption that judiciary can only be independent if we keep executives and civil society apart from it, is facing aspersion from intellectuals. There is no evidence that shows that when judges were appointed before 1993, the independence of judiciary was at stake.
  2. No one outside the judiciary has the wisdom to assess the ability and suitability of a person to be appointed as a judge. What happens elsewhere? Although it may not be a fair comparison to make, owing to the Sui Generis (uniqueness) of India, yet one sees that the US president can appoint any person as a judge of the Supreme Court of United States.[xiv] In the UK, High Court judges are selected after the recommendation from “Judicial Appointment Commission” which is an independent commission.[xv] The appropriate authority (the Lord Chancellor, Lord Chief Justice or Senior President of Tribunals) can accept or reject a JAC recommendation. Thus judges do not appoint judges in Washington and London, the two democracies from where our Constitution has borrowed extensively.
  • Civil society cannot offer two eminent persons to participate in the selection process. It seems as if once appointed, judges are evolved members of human race that sets them apart from the rest. Felix frankfurter, a law professor at Harvard, after becoming a Supreme Court judge, gave fascinating display of his ability to give verdict based on his deep knowledge of law.[xvi] Members of executives and judiciary more or less come from same sections of society. If one appears on lighter side from other, it may be because executives come under greater scrutiny than judiciary.
  1. Politician may be corrupt and unworthy. There can be a grain of truth in assuming that some politician may be corrupt after some high profile scams and corruptions came to light. But the corollary that judges are incorruptible is nothing but mere presumption. The two decade old collegium system which beset with many stigmas such as; opaque, lack of transparency, irregularities, arbitrariness, impracticability and improper implementation also needs to be checked and improved. Power corrupts and absolute power corrupts absolutely. The learned judgement also includes a mansion of internal emergency declared by Prime Minister, Indira Gandhi. Suppression took place, the political power was misused and judicial review was sought to be undermined at that time. At that juncture, M.H. Beg, J., was appointed as Chief Justice of India on 29.1.1977, by superseding his senior H.R. Khanna, J.[xvii]

At the same time according to the amended provision of the Constitution, the Constitution (One Hundred and Twenty First Amendment) Bill 2014 seeks to insert new Article; 124A, 124B, 124C.  Article 124 C[xviii] which read as “Parliament may by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justice and other Judges of High Court and empowers the Commission to lay down by regulations the procedure for the discharge of its function, the manner of selection of persons for appointment and such other matters as may be considered necessary by it”. The point of contention is that parliament by inserting this article crossed its amendment power as has been voiced by petitioners, which is limited and should be according to the basic structure of our constitution. It was submitted before the bench that the method of functioning of NJAC could not be left to the Parliament, to be regulated by ordinary law. The Amendment also dilutes the judiciary’s constitutionally-conferred power by granting unbridled power on the Parliament to control, by ordinary law, the manner of selection of a person for appointment to higher judiciary, which also damages the independence of judiciary.[xix] Here argument raised by Attorney General Mukul Rohatagi in counter is that mere possibility of abusing a provision of a statute is no ground to term it unconstitutional. It was emphasized by the court that mere possibility of abuse is not a ground for striking it down. An abuse of power can always be checked through judicial review of the action complained of. In D.K. Trivedi & Sons v. State of Gujarat[xx]  it was said:

                  “Where a statute confers discretionary powers upon the executive or an administrative authority, the validity or constitutionality of such power cannot be judged on the assumption that the executive or such authority will act in an arbitrary manner in the exercise of the discretion conferred upon it. If the executive or the administrative authority acts in an arbitrary manner, its action would be bad in law and liable to be struck down by the courts but the possibility of abuse of power or arbitrary exercise of power cannot invalidate the statute conferring the power or the power which has been conferred by it.”

 

Justice Mr. J. Chelameswar in his lone learned dissent “I do not even want to embark upon an enquiry whether the constitutional fascination for the basic structure doctrine be made a Trojan horse to penetrate the entire legislative camp.”

Trust deficit– More than anything else, a serious lack of ‘trust’ in the government appears to have forced the majority judges to strike down the Acts as unconstitutional. The spirit of constitution speaks as all the organs of the state should have trust among themselves and act in harmony and cooperation for the growth of democracy and mutual considerations. Justice J.S.Khehar referred to the resignation by 13 state Governors and one Lieutenant Governor of a Union Territory after the National Democratic Alliance (Government) came to power in 2014. Saying that “each one of them would be eligible for nomination as an ‘eminent person’ in the NJAC, he wondered whether all the resignation were voluntary.

“It would be of utmost importance, therefore, to shield judicial appointments from any political-executives interference to preserve the independence of judiciary”, he observed.

Justice madan B. Lokur, for instance wondered “whether a person with different sexual orientation would be found eligible for judgeship if the politicians had an edge over the judiciary in the NJAC”. But at the same time there is no record which shows that any member of LGBT community came into the judiciary through the collegium system that is judges-appoint-judges, which has been operating for two decades.[xxi]

Dr. Rajendra Prasad said “if the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective constitution. If they are lacking in this, the constitution cannot help the country. After all, a constitution like a machine is a lifeless thing, it acquires life because of the men who control it and operates it, and India needs today nothing more than a set of honest men who will have the interest of country before them”.

 NJAC- a step well thought of.        

The constitution (Ninety-Ninth Amendment) was indeed a valid law; it was a step further toward improvement in the judicial appointment system. But the National Judicial Appointment Commission Act was flawed. Some provisions of the Act were loosely defined and left vague.  

Firstly, as has been mentioned above, two “Eminent Persons” would have been selected by the three member committee, but No guidelines had been prescribed for appointment of the same. In this view of the matter, the Hon. SC stated that, even if the contention that no guideline was required for criteria for appointment of eminent persons when the Committee will be comprised of high dignitaries is accepted. The fact remains that such persons will play not merely supporting but pre-dominant role in appointing Supreme Court and High Court judges which will not be congenial to the independence of judiciary. Moreover, the term is too broad that eminent person if chosen, who have nothing to do with field of law, they are not aware of how judicial system works, would result in violation of independence of judiciary.[xxii] Justice Mr. Kurian Joseph, publicly voiced his discontentment with this provision saying that “eminent persons”, who were earlier denied any role in judicial appointments were now to “suddenly” assume “KAFKAESQUE PROPORTIONS” and who could acting in concert, paralyze the whole appointment process.

Second, In Section 5 (2) ‘suitability criteria’ is left to be worked out by regulations. Second proviso to Section 5 (2) and Section 6 (6) give veto to two members of the Commission which is not contemplated by the Amendment. Referring to the above mentioned sections, it was submitted, that a recommendation for appointment of a Judge, could not be carried out, if the two “eminent persons” did not accede to the same. In case they choose to disagree with the other Members of the NJAC, the proposed recommendation could not be given effect to, even though the other four Members of the NJAC including all the three representatives of the Supreme Court approved of the same. It was pointed out, that the two “eminent persons”, therefore would have a decisive say. It was further submitted, that the impact of the determination of the two “eminent persons”, would be such, as would negate the primacy hitherto before vested in the Chief Justice of India. 

Third, the inclusion of Law minister of India. It had been contended by petitioners that, the presence of Union Law Minister would grossly vitiate the process of justice delivery. It would give executives unfettered power, which will eventually erode primacy of judiciary in judicial appointments. Today Government is biggest litigant in the country as had been noticed in “Supreme Court Advocates on Record Association v. Union of India”[xxiii] and interference by executives would trample the faith of people in judiciary. But at the same time there is no jurisprudential principle to assume that the inclusion of the Law Minister will taint the process of selection and appointment.

Fourth, the bench also found another provision in the Amendment Act seriously flawed. Section 5(1) of the Act required that the NJAC shall recommend for appointment the senior most judge of the Supreme Court as the Chief justice of India if he was considered “FIT” for to hold the office.[xxiv] The bench noted that the Act carried no definition of the term “Fitness” and even after the oral explanation of the Attorney General Mukul Rohatagi that the term only meant to be mental and physical fitness and nothing else; the bench seemed to be unconvinced.

Cost of correcting corruption.

On the issue of judicial accountability, Shanti Bhushan, in an article published in September 2009, remarked that the problem of judicial accountability has been compounded by the Hon. SC judgement in the Veeraswami case, it was held by the apex court that “no judge of Supreme court or High Court can be subjected to even an investigation for any offence of corruption, unless one obtains prior written permission from the Chief justice of India”. This may be held with the objective of mitigating unwanted and false accusation, which taints the reputation of judiciary. But this has resulted in a situation where no sitting judge has been subjected to investigation in the last two decades; despite public knowledge and complaints of wide spread corruption in the judiciary. The harsh reality is that police do not dare approach the Chief Justice of India for permission to investigate the charge labelled against a judge unless they already have clinching evidence, which they cannot get unless they investigate.[xxv]

Wrong choices are nothing but the results of human fallibility and the whole system cannot be blamed for them.. Justice U.L. Bhatt, who was the Chief Justice of Guwahati and Madhya Pradesh High court, was the first victim of the collegium system of appointment of judges, writes in his Autobiography, “The Story of a Chief Justice” that M.N. Venkatachalaih, the first Chief Justice of India to enjoy primacy in appointments, told him that his junior, Justice K.S. Paripoornan, was being elevated to the Supreme Court bypassing him, since “my colleagues feel that you are irreverent to them”.[xxvi] Justice U.L. Bhatt was one of the best legal minds in the country that SC ever missed.

According to Fali S Nariman, “before the advent of the Right to Information (and even thereafter), such impertinent queries were met with responses such as: ‘it is none of your business to ask us questions’ and ‘we (the judges) know what is best for the system”[xxvii]

This is not the end of discussion there are many more such examples that resulted in nothing but led to the degradation in the standard of judiciary, which is harmful for any democracy to survive.

A Fundamental Question of The PRIMACY in Judicial Appointments.

The whole debate comes down to a point that Judiciary can only be independent if Judges appoint judges. Take for instance the assertion is right; there are several constitutional bodies, besides the Judiciary, which are required to function independently of the Executives. The Election Commission, the Union and the State Public Services Commission, the Comptroller and Auditor General of India are among them. Must they also not then become self perpetuating?[xxviii] We need to understand the assumption that ‘primacy of the judiciary’ in the appointment process is a ‘basic feature of the Constitution’ is empirically flawed.[xxix] We all know that the Constitution of India does not prescribe that the Executives should be excluded from the selection process. The collegium is the result of judicial decisions expanding the theory of judicial independence. Here it is clear that judicial independence is undoubtedly a basic structure but this extension is not.

Former Chief Justice M N Venkatachalaiah recommended in 2002 that the NJAC be bought into effect and participation of the Executives and the Judiciary in recommendations. Including ‘eminent’ persons in the selection process is not a bane.

It is absolutely impertinent to conclude that civil society in India is not matured yet, Justice Chelameshwar in his learned lone dissent said “to hold that it (government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy,”. His holiness justice J. Chelameshwar also stated that Attorney General Mukul Rohatagi was right in his submission that exclusion of the executives’ branch is destructive of the basic feature of checks and balances- a fundamental principle in constitutional theory.

Moreover, ‘trust deficit’ that affected the credibility was well explained by justice Chelmameshwar:“Deserving persons have been ignored for subjective reasons, social and other national realities were overlooked, certain appointments were delayed either to benefit vested interests or deny such benefits to the less patronised, selection of favoured persons were made violating guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegiums affects the dignity, if not independence of the judges, the court, particularly the SC, often being styled as the court of the collegium, looking forward syndrome affecting impartial assessment, have been some of the other allegations”.

No one can deny the powerful lobbying that is thriving in secrecy in the collegium system that pushes some people up the judiciary’s ladder in a well calculated manner. Do we have right to know how our judges being selected? Why the process of selection isn’t open to the common people of the country?

  Possible solutions:

After NJAC termed as unconstitutional the two decade old system continue to exist and responsible for appointment in higher judiciary. What can be the options for next would be as follows:

  1. Collegium system continues to exist and have exclusive authority to appoint person for the judges of High Court and Supreme Court.
  2. Improvements in collegium system keep in mind vital issues raised for corruption, lack of transparency, favouritism and nepotism. The process should be more transparent by releasing the information and make it accessible to public so that, no undeserving candidate can enter into august judiciary. There should a proper mechanism to address the issue of complaints.
  • With a few deft stroke of the pen the NJAC act that was struck and held to be unconstitutional can be changed and improved to make it acceptable to the Parliament, the judiciary and the executives.
  1. Both the collegium and the judicial appointment commission should come into picture wherein, collegium should nominate candidates and recommend it to commission(the commission should be broad based like 10-15 members body like in United kingdom consisting jurists, judges, eminent lawyer, law minister and legal scholars) which would select candidate suitable and recommend finally to the President of India.
  2. A person nominated by the collegium and recommended by the commission, and no other person shall be appointed as a judge.

Conclusion

“Help us improve and better the system. You see the mind is wonderful instrument”-Justice Khehar. To conclude I would say both Executives and Judiciary should work toward achieving mutual goals and betterment of the people of country. The NJAC was indeed a good step towards bringing in change. Now courts should move quickly to restore the faith of the people in the temple of justice. With the basic structure remaining undefined, the judiciary has the unfettered right to say, not only what the Constitution is but also, what it should be. It is time to think of ways to restore the role of “WE THE PEOPLE” as makers and keepers of the Constitution. When two decades of experience shows so many cracks in the system why an alternative shouldn’t be tried. After reading enriching 1030 pages judgement it can be concluded that judicial review is a matter of constitutional affair where decisions are based on juridical reasons instead of political. Some may be delectable to the regime or political class, others may not be. When justices decide, they decide according to the discipline and traditions of constitutional interpretation. It happens sometimes, that they may be wrong but according to the constitution ‘Article 141’ it becomes binding. The times are indeed challenging, but all challenges present opportunities. Our past disappointments should not preclude hope for the future.

All the rights secured to the citizens under the constitution are worth nothing, and a mere bubble except guaranteed to them by an independent and virtuous judiciary.-

                                                                                                                          Andrew Jackson

It is our fine sense of judgement as to how we determine, what we think as to the NJAC debate.             

__________________________________________

[i] Art. 50, the Constitution of India.

[ii] Independence of judiciary in India: A critical analysis, Mulnivasi organiser, available at https://mulnivasiorganiser.bamcef.org/?p=482 , last seen on 19/12/2015.

[iii] M. Chhibber, President Signs NJAC Bill to Change the Way Judges are Appointed, The Indian Express (01/01/2015), available at https://indianexpress.com/article/india/india-others/president-signs-bill-to-change-the-way-judges-are-appointed/ , last seen on 17/12/2015.

[iv] The constitution (Ninety-Ninth Amendment) Act, 2014 (unconstitutional)

[v] Ibid

[vi] Art. 124 (2), the Constitution of India.

[vii] S. P.Gupta v. Union of India  A.I.R. 1982 S.C. 149.

[viii] A. Sudhir, Restoring the Judiciary’s Credibility, The Hindu, (Nov. 15, 2014), available at https://www.thehindu.com/opinion/lead/restoring-the-judiciarys-credibility/article6242504.ece , last seen on 20/12/2015.

[ix] S.C. Advocates on Record Association v. Union of India, A.I.R.1994 S.C. 268.

[x] R. Ramachandran, Judicial Supremacy and the Collegiums, (Nov. 8, 2014), https://india-seminar.com/2013/642/642_raju_ramachandran.htm , last seen on 15/12/2015.

[xi] A. Jaitley, the NJAC- An Alternative View (2015), available at https://m.facebook.com/ArunJaitley/posts/418492815005939 ,last seen on 19/12/2015.

[xii] P.Chidambaram, Across the Aisle- the NJAC Conundraum, The Indian Express (1/11/2015), available at https://indianexpress.com/article/opinion/columns/across-the-aisle-the-njac-conundrum/ , last seen on 20/12/2015.

[xiii] Ibid

[xiv] U.S. Constitution, Article II, S. 2, Cl. 2

[xv] S. 61, Constitutional Reform Act 2005 (United Kingdom).

[xvi] Constitution is the supreme law of land,  Www.FinancialExpress.Com, available at https://www.financialexpress.com/article/fe-columnist/constitution-is-the-supreme-law-of-the-land/154982/ , last seen on 20/12/2015.

[xvii] Supreme Court Advocates-on-Record Association and Ors v. Union of India, Civil Appeal No.13 of 2015(Supreme Court), 16/11/2015.

[xviii] The Constitution  (One Hundred and Twenty First Amendment) Bill 2014 (Unconstitutional)

[xix] Supreme Court Advocates-on-Record Association and Ors v. Union of India, Civil Appeal No.13 of 2015 (Supreme Court), 926, 16/11/2015.

[xx] 1986 Supp SCC 20 in paragraph 50.

[xxi] We the People Have No More Say on the Constitution, the Wire, available at https://thewire.in/2015/10/29/we-the-people-have-no-more-say-on-the-constitution-14391/ , last seen on 20/12/2015.

[xxii] Supra 17 at 935.

[xxiii] (1993) 4 SCC 441 (Nine Judges Bench).

[xxiv] Sec. 5(1), the Constitution (Ninety-Ninth Amendment) Act2014 (Unconstitutional).

[xxv] K. Mishra, NJAC was the people’s will, The Indian Express 10 (Ahmadabad 26/10/2015).

[xxvi] U.L.Bhat-First Martyr of the Collegiums System, LiveLaw.In, available at  https://www.livelaw.in/exclusive-justice-u-l-bhat-first-martyr-of-the-collegium-system-justice-bhat-not-elevated-to-the-sc-for-being-irreverent-to-his-seniors/ , last seen on 18/12/2015.

[xxvii] Ibid.

[xxviii] Supra 12.

[xxix] M. Sridar, Need Transparency in the Selection of Judges, the New Indian Express (13/11/2015), available at https://www.newindianexpress.com/columns/Need-Transparency-in-Selection-of-Judges/2015/11/13/article3125453.ece , last seen on 18/12/2015.

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