An assertion of primacy
It is extraordinary that there should be near-unanimity in the country that the present system of judicial appointments that was put in place in 1993 is deeply unsatisfactory, and yet the most significant legislative effort to reform it should fail before the Supreme Court. It is no surprise that a five-judge Bench has struck down the Constitution Act, 2014, by which the government established a >National Judicial Appointments Commission to select members of the higher judiciary. There were doubts whether the composition of the NJAC, especially the inclusion in it of the Union Law Minister and two “eminent persons” appointed by the government, would survive judicial scrutiny. For, the law also gave any two members a veto over all decisions, raising the question whether the judicial members could be overruled by the executive representatives. While to some it may appear that striking down a Constitution amendment passed unanimously in both Houses of Parliament and ratified by 20 State Assemblies amounts to negating the people’s will, it cannot be forgotten that the judiciary remains the sole authority to decide whether a law violates the basic structure of the Constitution.
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