The Constitutional Bench order, that strikes down the National Judicial Appointments Act, 2014, as 'unconstitutional' and violative of 'basic structure,' runs into more than 1000 pages. While several benches have deliberated the matter, the final five-bench constituted were: Jagdish Singh Khehar, J Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel. While Chelameswar was the only who voted that the amendment be upheld, all were were pretty much unanimous that the existing collegium system--whereby only judges appoint their own--needs some fixing.
There is no healthy system in practice. No doubt, the fault is not wholly of the Collegium. The active silence of the Executive in not preventing such unworthy appointments was actually one of the major problems....Therefore, the Collegium system needs to be improved requiring a ‘glasnost’ and a ‘perestroika’, and hence the case needs to be heard further in this regard.
I would conclude that the new scheme damages the basic feature of the Constitution under which primacy in appointment of judges has to be with the judiciary. Under the new scheme such primacy has been given a go-bye. Thus the impugned amendment cannot be sustained
---Adarsh Kumar Goel
The frequency with which the residuary jurisdiction of this Court under Article 136 is invoked seeking correction of errors
committed by the High Courts, some of which are trivial and some profound coupled with bewildering number of conflicting
decisions rendered by the various benches of this Court only indicate that a comprehensive reform of the system is overdue.
Selection process of the Judges to the CONSTITUTIONAL COURTS is only one of the aspect of such reforms.
Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.
I hold that the Article 124A as introduced in the Constitution by the Constitution (Ninety-ninth Amendment) Act, 2014
impinges on the independence of the judiciary and in the matter of appointment of judges (which is a foundational and integral part of the independence of the judiciary) and alters the basic structure of the Constitution. It is accordingly declared unconstitutional.
The procedure for appointment of judges as laid down in these decisions read with the (Revised) Memorandum of Procedure definitely needs fine tuning. We had requested learned counsel, on the close of submissions, to give suggestions on the basis that the petitions are dismissed and on the basis that the petitions are allowed