NEW DELHI: The Supreme Court on Friday struck down the National Judicial Appointments Commission ( NJAC ) and ordered revival of the SC-scripted two-decade-old ‘judges-selecting-judges’ collegium system, rebuffing a unanimous decision by Parliament to usher transparency in appointment of judges and potentially setting the stage for a confrontation with the executive.A five-judge bench by four to one majority declared the 99th constitutional amendment and the consequent legislation NJAC Act as unconstitutional on the ground that the NJAC had the law minister and two eminent persons as members who could join hands to reject the proposals of the judiciary – the Chief Justice of India and two senior-most judges of the SC. Under the NJAC, any two members can veto a proposal.The court held that the constitutional amendment and NJAC was a sure recipe for executive interference in judicial independence, which was part of the inviolable basic structure of the Constitution.Though the court ordered revival of the collegium system, each of the five judges acknowledged that all was not well with the judges-selecting-judges mechanism which was in dire need of transparency. It requested the government and the petitioners to give suggestions in writing on November 3 for improving the collegium system.The order marks a lethal blow to attempts to end the widely criticized collegium system. Seeking a review by a larger constitution bench is not an appealing option because such scrutiny is unlikely to result in reversal of the order. The government can call an all-party meeting to save the NJAC. However, although the 99th constitutional amendment bill was passed unanimously, whether the same kind of solidarity can be achieved afresh, should government make another bid to end judiciary’s monopoly on the appointment of judges, looks uncertain. Ties with the opposition, particularly Congress, have since deteriorated sharply.Four judges – Justices JS Khehar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel – were unambiguous that inclusion of a politician (law minister) in the body assigned the crucial task of selecting judges was fraught with the danger of serious interference with the independence of judges and recalled how the Indira Gandhi regime in the 1970s had advocated appointment of ‘committed’ judges.With this, the collegium system of appointment of judges scripted through two SC judgments, one in 1993 and the other in 1998, gets revived. Under this system, selection of judges to the SC is done by a body of five judges – the CJI and four senior-most judges of the SC.High court judges are selected by the HC collegium in consultation with the chief minister and the governor and sent to the SC, where a panel of the CJI and two senior-most judges vet it before sending it to the government for appointment.Justice Chelameswar struck the lone dissent note and upheld the 99th constitutional amendment, terming it the right way of reforming the appointment process of judges. He recalled the infamous ADM Jabalpur case of 1976 when the apex court had declared that right to life could be suspended during Emergency and said, “In difficult times, when political branches cannot be counted upon, neither can the judiciary.”Referring to “bad appointments” like Justice P D Dinakaran, Justice Chelameswar said, “Fiasco created in Dinakaran case would justify the participation of civil society in the process to eliminate from the selection process the maladies involved in the process.”He said a comprehensive reform of the collegium system was overdue as there were many earlier instances when the system, which has no accountability, had failed and recalled the names it had recommended after the executive pointed out mistake in the choice.However, the other four judges were convinced that the NJAC would be a disaster for the independence of judiciary and the justice delivery system as a whole.Justice Khehar, in his 440-page judgment, made light of the fact that Parliament had unanimously backed NJAC. He said for judicial scrutiny of the constitutional validity of a law, it was inconsequential whether it was passed in Parliament with a wafer-thin majority, brute majority or unanimity.Just because the 99th constitutional amendment was passed unanimously by Parliament and was ratified by 28 assemblies would not make it exempt from judicial scrutiny on the touchstone of ‘basic structure of the Constitution’, he said.On the inclusion of the law minister and two eminent persons in the NJAC with any two members empowered to veto a proposal mooted by the CJI and two senior-most judges, Justice Khehar said it breached the primary mandate of the Constitution to give primacy to the CJI in appointment of judges and was, thus, violative of the basic structure.The two eminent persons could block the proposal supported by the CJI, two senior-most judges and even the law minister, he said, adding, “If this is allowed, then primacy of the judiciary would be rendered a devastating blow, by making it extremely fragile.“The actual practice and manner of appointment of judges to the higher judiciary, emerging from the parliamentary debates, clearly depict that absolutely all judges (except in one case) appointed since1950 had been appointed on the advice of the Chief Justice of India. It is therefore clear that the political-executive has been conscious of the fact that the issue of appointment of judges to the higher judiciary mandated the primacy of the judiciary, expressed through the Chief Justice of India,” Justice Khehar said.He and Justice Lokur faulted the inclusion of the law minister in the NJAC, saying the government was the biggest litigant and, hence, participation of its representative in selection of judges would render the justice delivery system suspect in the eyes of the general public.“Since the executive has a major stake in a majority of cases, which arise for consideration before the higher judiciary, the participation of the Union minister in charge of law and justice, as an ex-officio member of the NJAC, would be clearly questionable,” the court said.The court said participation of law minister in the NJAC and appointment of judges through it could raise the “conflict of interest” handicap against those judges from hearing cases against the government.“The above would have the inevitable effect of undermining the independence of the judiciary, even where such a plea is repulsed. Therefore, the role assigned to the political-executive can at best be limited to a collaborative participation, excluding any role in the final determination. Therefore, merely the participation of the Union minister in charge of law and justice in the final process of selection, as an ex-officio member of the NJAC, would render the amended provision of Article 124A(1)(c) as ultra vires the Constitution, as it impinges on the principles of ‘independence of the judiciary’ and ‘separation of powers’,” the court said.The court also faulted the inclusion of two eminent members in the NJAC, saying it mattered little even if they were to be selected by a high-level panel of the prime minister, the CJI and the leader of opposition.“The absurdity of including two eminent persons on the NJAC can perhaps be appreciated if one were to visualize the participation of such lay persons in the selection of the Comptroller and Auditor General, the chairman and members of the Finance Commission, the chairman and members of the Union Public Service Commission, the chief election commissioner and the election commissioners and the like. The position would be disastrous. In our considered view, it is imprudent to ape a system prevalent in an advanced country, with an evolved civil society,” the court said.