AS ASSERTION OF PRIMACYIt is extraordinary that there should be near unanimity in the country that the present system of judicial before the Supreme Court. It is no surprise that a five judge bench has struck down appointments that was put in place in 1993 is deeply unsatisfactory and yet the most significant legislative effort to reform it should fail the constitution (99 Amendment) Act, 2014, by which the government established a National Judicial Appointment commission to select member of higher judiciary. There were doubts whether the composition of the NJAC, especially the inclusion in it of union law minister and two “eminent person” 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. The attorney general could not convince the court that the amendment along with the NJAC Act, was aimed at restoring the system of checks and balances which, according to the government, was lost after the supreme court created the collegiums system of appointments. The core question was whether the new institutional mechanism to appoint judges impinged on the independence of judiciary, a basic feature of constitution. The court has ruled that it does. Justice J.S. Khehar, writing the main judgment, has held that the clauses provided in in the amendment are inadequate to preserve primacy of judiciary. The inclusion of law minister in the body impinged on both the independence of the judiciary and the doctrine of separation of powers.

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