#1. NJAC held unconstitutional

Supreme Court Advocates on Record Association vs. Union of India

“The judiciary cannot risk being caught in a web of indebtedness towards the government.”

It is after 35 years that a constitutional amendment has been quashed by the top court.

Summary:

Within a year of both houses of Union Legislature passed much awaited National Judicial Appointments Commission Bill, the Supreme Court struck down the NJAC Act by 4:1. Justices J S Khehar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel declared the 99th Amendment and NJAC Act unconstitutional while lone minority, Justice Chelameswar upheld it. The judgement rendered by five judges runs over 1000 pages.

Major observations of the Supreme Court:

• Does not provide an adequate representation, to the judicial component in the NJAC.
• Insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges, from one High Court to another)
• The Law Minister:

The inclusion of the Union Minister of Law and Justice as an ex officio Member of the NJAC is:

• ultra vires the provisions of the Constitution, because it impinges upon the principles of “independence of the judiciary” & “separation of powers”

• Violative of the “basic structure” of the Constitution

• Against Principles of Natural Justice: Because Government is the major litigant and cases involve large sums of money. And inclusion of Law Minister would be against “judge of own case“, a part of PNJ.

• Will of the people: The Union government had previously argued that NJAC represented the will of the people. However, rejecting the Centre’s argument, court noted that “the will of the people is the Constitution while the Parliament represents the will of the majority at a given point of time which is subordinate to the Constitution”.

Culture of Reciprocity: Bench feared a culture of “reciprocity” of favours: FEELINGS OF PAY BACK TO POLITICAL-EXECUTIVE WOULD BE DISASTROUS TO THE INDEPENDENCE OF JUDICIARY, especially when govt is the major litigant in higher courts.

#2. Yakub Memon & the midnight hearing

Yakub Abdul Razak Memon vs. State of Maharashtra

Summary:

The year 2015 witnessed a rare event of the Apex Court opening its gates for hearing an urgent Writ petition. Yakub Memon’s final plea before the Apex Court was heard in Court Room 4 which was opened for an unprecedented 90-minute hearing that started at 3.20 AM and ended a little before dawn. The Bench comprising Justice Dipak Misra, Justice Amitava Roy and Justice P.C. Pant agreed and observed that granting further time was not necessary in the present case. The bench said the execution was “inevitable” after rejection of the mercy petitions. Yakub was executed the very next day on his birthday.

Background:

• Memon, a CA by profession was awarded the death sentence by a special TADA Court in Mumbai on July 27, 2007 for his role in the serial blasts.
• Charges also included arranging finances for carrying out the 13 serial explosions.
• Explosions left 257 dead and over 700 injured across the city on March 12, 1993.
• In 2013, Supreme Court had upheld the TADA Court verdict convicting Memon for his role in the Bombay blasts.
• Memon is the only one of 11 people whose death sentence in the case has been upheld. The sentences of the others were commuted to life imprisonment.

Observations of the Supreme Court:

• Stay on the death warrant could be a ‘travesty of justice‘: since ample opportunity was provided to Memon, after the rejection of the first mercy petition.

Memon’s review petition was heard for ten days, when law mandates a hearing of only half an hour.

• The President rejected after due consideration of all relevant fact. 22 years have passed since the incident. There is no error in judgments passed by this court.
• At the drop of a hat one can add new challenges and developments and expect the President to act in exercise of power under Article 72 and thereafter on rejection of clemency they would challenge that in a court of law.

Counter arguments:

• The authorities were “hell bent” on executing Memon without giving him the right to challenge the rejection of his mercy petition by the President as right to life of a condemned prisoner last till his last breath.
• How the President could have rejected Yakub’s fresh mercy plea in such a short time.
• According to rules, the nearest legal centre must be contacted the day mercy plea gets rejected. That did not happen.

Published with inputs from Swapnil