The Supreme Court on Wednesday urged the West Bengal government to wait and not go ahead with a separate judicial inquiry into the Pegasus snooping allegations when the top court is already seized of the issue.
• A spyware is malicious software designed to hack devices such as computers or smartphones in order to gather data serve it to a third party without consent.
• Pegasus is a spyware developed by NSO Group, an Israeli surveillance firm, that helps spies hack into phones.
In 2019, when WhatsApp sued the firm in a U.S. court, the matter came to light. In July 2021, Amnesty International, along with 13 media outlets across the globe released a report on how the spyware was used to snoop hundreds of individuals, including Indians
While the NSO claims its spyware is sold only to governments, none of the nations have come forward to accept the claims.
An international media consortium has reported that over 300 verified Indian mobile phone numbers were on the list of potential targets for surveillance.
NSO Group claims their motive is to ‘develops best-in-class technology to help government agencies detect and prevent terrorism and crime.’
HOW DOES PEGASUS WORK
Pegasus’ USP is its ability to invade a phone without a click.
Pegasus operators sent text messages containing malicious
The hackers were able to install the malware in users’ phones, including iPhones and Android devices, through loopholes with just a missed call, without leaving any trace on the gadget.
A Base Transceiver Station (BTS)— or ‘rogue cell tower’ or ‘IMSI Catcher’ or ‘stingray’ — impersonates legitimate cellular towers and forces mobile phones within a radius to connect to it, so that the intercepted traffic can be manipulated by an attacker. The BTS photographed in 2019 was composed of horizontally-stacked cards, likely to allow interception over multiple frequency bands.
The other option is to leverage access to the target’s mobile operator itself. In that scenario, an attacker would not need any rogue cell tower but would rely on the regular network infrastructure for manipulation.
Either way, the capability of launching ‘network injection’ attacks — performed remotely without the target’s engagement (hence, also called zero-click) or knowledge —gave Pegasus, NSO Group’s flagship product, an unique edge over its competitors in the global spyware market.
Apart from data theft, Pegasus is potent enough to clear information from the host device including clearing caller logs, calendar events etc – making certain that particular data is snatched away from the target person.
Researchers discovered the earliest version of Pegasus in 2016. This version infected phones through what is called spear-phishing – text messages or emails that trick a target into clicking on a malicious link
Until early 2018, NSO Group clients primarily relied on SMS and WhatsApp messages to trick targets into opening a malicious link, which would lead to infection of their mobile devices. A Pegasus brochure described this as Enhanced Social Engineering Message (ESEM). When a malicious link packaged as ESEM is clicked, the phone is directed to a server that checks the operating system and delivers the suitable remote exploit.
In its October 2019 report, Amnesty International first documented use of ‘network injections’ which enabled attackers to install the spyware “without requiring any interaction by the target”. Pegasus can achieve such zero-click installations in various ways. One over-the-air (OTA) option is to send a push message covertly that makes the target device load the spyware, with the target unaware of the installation over which she anyway has no control.
To avoid extensive bandwidth consumption that may alert a target, Pegasus sends only scheduled updates to a C&C server. The spyware is designed to evade forensic analysis, avoid detection by anti-virus software, and can be deactivated and removed by the attacker, when and if necessary.
This, a Pegasus brochure brags, is “NSO uniqueness, which significantly differentiates the Pegasus solution” from any other spyware available in the market.
Shri AshwiniVaishnaw, the Minister of Electronics & Information Technology made following statement on “Alleged use of spyware Pegasus to compromise phone data of some persons as reported in Media on 18th July 2021” in Lok Sabha
The presence of a phone number in the data does not reveal whether a device was infected with Pegasus or subject to an attempted hack.
Without subjecting a phone to this technical analysis, it is not possible to conclusively state whether it witnessed an attack attempt or was successfully compromised.
Therefore, the report itself clarifies that presence of a number does not amount to snooping.
Issues with Government’s surveillance
• In 2012 in Himachal Pradesh, the new government raided police agencies and recovered over a lakh phone conversations of over a thousand people, mainly political members, and many senior police officials, including the Director General of Police (DGP), who is legally responsible for conducting phone taps in the State.
• In 2013, India’s current Home Minister Amit Shah was embroiled in a controversy dubbed “Snoopgate”, with phone recordings alleged to be of him speaking to the head of an anti-terrorism unit to conduct covert surveillance without any legal basis (as there was no order signed by the State’s Home Secretary which is a legal necessity for a phone tap).
• The UPA government in 2009 said that the CBDT had placed a PR professional, under surveillance due to fears of her being a foreign spy. Later on, the CBDT did not prosecute the person.
• Such examples of unlawful surveillance which seem to be for political and personal gain are antithetical to the basic creed of democracy. Consequently, they also bring up the need for ensuring that the surveillance is necessary and proportionate.
PROCEDURE IN INDIA TO INTERCEPT
In India, there is a well established procedure through which lawful interception of electronic communication is carried out for the purpose of national security, particularly on the occurrence of any public emergency or in the interest of public safety, by agencies at the Centre and States.
The requests for these lawful interception of electronic communication are made as per relevant rules under the provisions of section 5(2) of Indian Telegraph Act,1885 and section 69 of the Information TechnologyAct, 2000.
Each case of interception or monitoring is approved by the competent authority. These powers are also available to the competent authority in the state governments as per IT (Procedure and Safeguards for Interception, monitoring and Decryption of Information) Rules, 2009.
There is an established oversight mechanism in the form of a review committee headed by the Union Cabinet Secretary. In case of state governments, such cases are reviewed by a committee headed by the Chief Secretary concerned. The law also provides an adjudication process for those adversely affected by any incident.
Legislations on Surveillance
• The laws authorising interception and monitoring of communications are:
• Section 92 of the Criminal Procedure Code (CrPC)
• Rule 419A of the Telegraph Rules, and
• The rules under Sections 69 and 69B of the IT Act
Who can conduct Surveillance?
A limited number of agencies are provided powers to intercept and monitor.
In 2014, the Ministry of Home Affairs told Parliament that nine central agencies and the DGPs of all States and Delhi were empowered to conduct interception under the Indian Telegraph Act.
In 2018, 9 central agencies and 1 State agency were authorised to conduct intercepts under Section 69 of the IT Act.
The Intelligence Organisations Act, which restricts the civil liberties of intelligence agency employees, only lists four agencies. However, the RTI Act lists 22 agencies as “intelligence and security organisations established by the central government” that are exempt from the RTI Act.
K.S. Puttaswamy judgment, 2017 regarding Surveillance
• The K.S. Puttaswamy judgment, 2017, made it clear that any invasion of privacy could only be justified if it satisfied three tests:
• The restriction must be by law;
• It must be necessary (only if other means are not available) and proportionate (only as much as needed);
• It must promote a legitimate state interest (e.g., national security).
• The judgement held that privacy concerns in this day and age of technology can arise from both the state as well as non-state entities. As such, a claim of violation of privacy lies against both of them.
• The Court also held that informational privacy in the age of the internet is not an absolute right and when an individual exercises his right to control over his data, it may lead to the violation of his privacy to a considerable extent.
It was also laid down that the ambit of Article 21 is ever-expanding due to the agreement over the years among the Supreme Court judges. A plethora of rights have been added to Article 21 as a result.
The court stated that Right to Privacy is an inherent and integral part of Part III of the Constitution that guarantees fundamental rights.The conflict in this area mainly arises between an individual’s right to privacy and the legitimate aim of the government to implement its policies. Thus, we need to maintain a balance while doing the same.
Various recommendations in the past regarding Surveillance
In 2010, then Vice-President called for a legislative basis for India’s agencies and the creation of a standing committee of Parliament on intelligence to ensure that they remain accountable and respectful of civil liberties.
The Cabinet Secretary in a note on surveillance in 2011 held that the Central Board of Direct Taxes having interception powers was a continuing violation of a 1975 Supreme Court judgment on the Telegraph Act.
In 2013, the Ministry of Defence-funded think-tank published a report which recommended that the intelligence agencies in India must be provided a legal framework for their existence and functioning; their functioning must be under Parliamentary oversight and scrutiny.
In 2018, the Srikrishna Committee on data protection noted that post the K.S. Puttaswamy judgment, most of India’s intelligence agencies are “potentially unconstitutional”. This is because they are not constituted under a statute passed by Parliament — the National Investigation Agency being an exception.
1. The capture of a handheld machine by Pegasus turns that into a real-time spy on the target who can be watched over and followed every step.
2. This surveillance is total, into their private and intimate lives, which have no bearing on any public interest.
3. Information obtained illegally may have been used to compromise institutions, to steal elections, sabotage Opposition campaigns, and even dislodge an Opposition government.
4. Indian citizens were indeed targets of a vicious, abominable and uncivil surveillance campaign by a government entity, Indian or foreign.
5. Lack of awareness and specialists in digital security makes this a vulnerable sector.
6. Terrorists and other anti-social elements have started using more of cyberspace which provides them with more getaways.
What is Malware
• Malware is short for malicious software. Malware is a catch-all term for various softwares including viruses, adware, spyware, browser hijacking software, and fake security software.
• Ransomware, Spyware, Worms, viruses, and Trojans are all varieties of malware.
NATIONAL MONETISATION PIPELINE (NMP)
Union Minister for Finance and Corporate Affairs, Smt Nirmala Sitharaman, today launched the asset monetisation pipeline of Central ministries and public sector entities: ‘National Monetisation Pipeline (NMP Volumes 1 & 2)’.
The pipeline has been developed by NITI Aayog, in consultation with infrastructure line ministries, based on the mandate for ‘Asset Monetisation’ under Union Budget 2021-22.
NMP estimates aggregate monetisation potential of Rs 6.0 lakh crores through core assets of the Central Government, over a four-year period, from FY 2022 to FY 2025.
“Infrastructure is much more than cement and concrete. Infrastructure guarantees
a better future. Infrastructure connects people”
-by Honourable P.M Narendra Modi
Asset Monetisation needs to be viewed not just as a funding mechanism, but as an overall paradigm shift in infrastructure operations, augmentation and maintenance considering private sector’s resource efficiencies and its ability to dynamically adapt to the evolving global and economic reality.
As part of a multi-layer institutional mechanism for overall implementation and monitoring of the Asset Monetization programme, an empowered Core Group of Secretaries on Asset Monetization (CGAM) under the chairmanship of Cabinet Secretary has been constituted.
The Government is committed to making the Asset Monetisation programme,a value-accretive proposition both for the public sector and private investors/developers, through improved infrastructure quality and operations and maintenance.
This is aimed at achieving the broader and longer-term vision of ‘inclusiveness and empowerment of common citizens through best in class infrastructure’.
NMP aims to provide a medium term roadmap of the programme for public asset owners; along with visibility on potential assets to private sector.
Report on NMP has been organised into two volumes. Volume I is structured as a guidance book, detailing the conceptual approaches and potential models for asset monetisation. Volume II is the actual roadmap for monetisation, including the pipeline of core infrastructure assets under Central Govt.
Monetization through disinvestment and monetization of non-core assets have not been included in the NMP. Further, currently, only assets of central government line ministries and CPSEs in infrastructure sectors have been included.
Considering that infrastructure creation is inextricably linked to monetisation, the period for NMP has been decided so as to be co-terminus with balance period under National Infrastructure Pipeline (NIP)
The sectors included are roads, ports, airports, railways, warehousing, gas & product pipeline, power generation and transmission, mining, telecom, stadium, hospitality and housing.
The assets and transactions identified under the NMP are expected to be rolled out through a range of instruments. These include direct contractual instruments such as public private partnership concessions and capital market instruments such as Infrastructure Investment Trusts (InvIT) among others.
Implementation & Monitoring Mechanism
As an overall strategy, significant share of the asset base will remain with the government.
The programme is envisaged to be supported through necessary policy and regulatory interventions by the Government in order to ensure an efficient and effective process of asset monetisation. These will include streamlining operational modalities, encouraging investor participation and facilitating commercial efficiency, among others.
The end objective of this initiative to enable ‘Infrastructure Creation through Monetisation’ wherein the public and private sector collaborate, each excelling in their core areas of competence, so as to deliver socio-economic growth and quality of life to the country’s citizens.
Challenges to NMP:
Lack of identifiable revenue streams in various assets.
Level of capacity utilisation in gas and petroleum pipeline networks.
Dispute resolution mechanism.
Regulated tariffs in power sector assets.
Low interest among investors in national highways below four lanes.
GOVT. CLEARS 9 NAMES FOR SC JUDGES
The government is learnt to have cleared all nine names recommended by the Supreme Court Collegium, led by Chief Justice of India N.V. Ramana, for appointments as judges of the top court.
APPOINTMENT OF THE CJI
• Appointed by President – The Chief Justice of India and the Judges of the Supreme Court are appointed by the President under clause (2) of Article 124 of the Constitution.
• Convention – As per convention, outgoing CJI recommends the name of the senior most judge of the Supreme Court as his successor. The Union Law Minister forwards the recommendation to the Prime Minister who, in turn, advises the President.
• Second Judges Case – SC in the Second Judges Case (1993) ruled that the senior most judge of the Supreme Court should alone be appointed to the office of the CJI.
ADMINISTRATIVE POWERS OF CJI & CHIEF JUSTICES OF HC
• Chief Justice of High Courts (HC) and Chief Justice of India apart from carrying judicial responsibilities and duties also ensures administrative work such as allocating cases to judges, forming division bench of two judges, forming vacation bench or constitution bench to oversee matters of constitutional importance and also deciding roster.
• In the case of State of Rajasthan v. Prakash Chand and Others, the Court stated that – Chief Justice of the High Court is the master of the roster and there is no justification not to treat the Chief Justice of India, who is the Chief Justice of the Apex Court, to have the same power. If the same principles are not followed, the institution cannot function.
• A roster refers to a list or plan showing turns of duty in an institution.
• In Supreme Court, the Roster is prepared by the Registrar of Supreme Court under the orders of CJI.
• The Roster may contain:
General or specific instructions regarding assignment or allocation of case to a particular Bench.
Also includes allocation of work of a Bench, on account of non-availability of Judges to another Bench.
Further, to meet any contingencies or emergency, CJI may instruct the Registrar to re-allocate judicial work to some other Bench.
In case of transfer of cases from one Bench of Judges to another Bench of Judges, then in such case the Registrar shall place the listing for transfer before CJI for his approval.
ALLOCATION OF BENCH BY CJI
• In case of Division Bench – any matter heard by a Division Bench of not less than 2 Judges shall be nominated by the CJI.
• Forming Constitution Bench – CJI may from time to time constitute a Constitution Bench consisting of 5 or more judges under Article 145 (3) to adjudicate matters involving substantial question of law or for interpretation of the Constitution or under Article 143 pertaining to Presidential reference.
• A Division Bench of two or more judges may refer any matter to a larger Bench of not less than 5 judges involving a substantial question of law. In such instances, the Division Bench shall refer the case to the CJI who shall thereupon constitute such a larger bench for hearing the matter.
Are there any rules or guidelines for Master of Roster?
• Regarding the issue of Master of the Roster, one needs to understand about Article 145 of the Constitution of India.
• Article 145 states that Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court.
• This includes rules regarding the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the Court are to be entered.
• Parliament of India under Article 145 has accordingly framed Supreme Court Rules, 2013.
• Article 145 further mentions that Supreme Court with the approval of the President may make rules regulating the general practice and procedure of the Court including:
Rules as to the procedure for hearing appeals, time within which appeals are to be entertained by the Court.
Rules as to the proceedings of the Court for enforcement of any rights conferred by PART III (Fundamental Rights).
Rules pertaining to transfer of cases under Article 139A where the same question of law or substantially the same question of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts.
Rules pertaining to transfer of any case, appeal or other proceedings pending before any High Court to any other High Court to meet ends of justice.
The Supreme Court may by rule fix the minimum number of judges who are to sit for any case and also provide for powers of Single Judges and Division Bench (more than one judge).
Article 145 (3) explains that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.
All judgments shall be delivered by the Supreme Court with the concurrence of a majority of judges present at the hearing of the case and such judge or judges who do not concur with the judgment of the majority can freely express their dissenting opinion or judgment.
STATE OF RAJASTHAN V PRAKASH CHAND
The Court stated-
The administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.
The Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.
That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.
The Judges of Division Bench cannot take up any other kind of judicial business which has not been assigned to them by or under the directions of the Chief Justice.
CAMPAIGN FOR JUDICIAL ACCOUNTABILITY & REFORMS v. UNION OF INDIA & OTHERS
• Supreme Court stated – There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers and that is why in Prakash Chand Judgment, it has been clearly stated that the administrative control of the High Court vests in the Chief Justice alone. The same principle must apply proprio vigore (by its own force or vigour) as regards the power of the Chief Justice of India.
• On the judicial side, CJI is only the first amongst the equals. But, as far as the roster is concerned, as has been stated by the Three-Judge Bench in Prakash Chand (supra), the Chief Justice is the master of the roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted.
• The Supreme Court also noted that the convention of CJI being the master of the roster is followed because of the principles of law and because of judicial discipline and decorum.
• Once the Chief Justice is stated to be the master of the roster, he alone has the prerogative to constitute Benches.
• Neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench.
• There cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench.
• An institution has to function within certain parameters and that is why there are precedents, Rules and conventions. As far as the composition of Benches is concerned, SC accepted the principles stated in Prakash Chand, which was stated in the context of the High Court, and clearly state that the same shall squarely apply to the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench.
SHANTI BHUSHAN V SUPREME COURT OF INDIA
• A petition was filed in the Supreme Court which stated that the “master of the roster” cannot be an “unguided and unbridled” discretionary power, exercised arbitrarily by the Chief Justice by handpicking the benches of select judges or by assigning cases to particular judges.
• Accordingly, Shanti Bhushan’s petition had advocated for a panel of senior judges to decide on roster of judges and also on assigning of cases.
• However, the Supreme Court declared that the Chief Justice of India is the “master of the roster” and has the power to assign cases.
• The Court further stated that CJI has the role of first among equals and is empowered to exercise leadership in administration of the court which includes assignment of cases.
• Thus, the Supreme Court refused to declare that the function of allocating cases and assigning benches should be exercised by the collegium of five senior Judges instead of the Chief Justice of India.
WHAT IS A COLLEGIUM?
• The Collegium System is one where the CJI and a forum of four senior-most judges of the Supreme Court recommend appointment and transfer of judges of higher judiciary.
• The collegium system evolved through three different judgments which are collectively known as the Three Judges Cases.
Now, recommendations of collegium have been made public on the website of Supreme Court including the reasons for appointment or transfer.
JUDGES APPOINTMENT – ARTICLE 124(2) AND 217(1)
• Judges to the Supreme Court and High Courts are appointed by the President of India by warrant under his hand and seal respectively under Article 124(2) and 217(1).
• Judges of Supreme Court shall hold office till the age of 65 years whereas Judges of High Courts shall hold office till the age of 62 years.
• However, the method and manner of their selection to higher judiciary has not been explicitly provided in the Constitution. Thus, the process for appointment, elevation and transfer of Judges to higher judiciary has been a debatable issue.
• Government of India earlier passed The Constitution (Ninety-Ninth Amendment) Act, 2014 to establish a National Judicial Appointment Commission (NJAC) to replace the Collegium.
• However, a Five Judge Bench of Supreme Court declared NJAC as unconstitutional because of interference from the executive in the judicial appointments. This decision effectively revived the Collegium system.
HOW COLLEGIUM CAME INTO BEING? – EARLIER PRACTICE
• Power to appoint Supreme Court judges rested primarily with the Executive. The practice was to appoint the senior most judge of the Supreme Court whenever a vacancy occurred by the Executive under Article 124 and 217.
• This move was criticized by Fourteenth Law Commission Report and suggested to widen the role of Chief Justice of India (CJI) in judicial appointments.
• However, the government did not act upon this recommendation and continued its practice.
DEPARTING FROM THE PROCESS – (EMPOWERED EXECUTIVE) – (UNDERSTANDING THE CHRONOLOGY)
• In 1973, the Union government departed from this practice and appointed Justice A.N. Ray as CJI who was fourth in order of seniority bypassing three senior judges of Supreme Court. The government was accused of tampering with the independence of judiciary. The three senior Judges resigned from their post in protest.
• Again in 1976, government appointed Justice Beg as CJI bypassing Justice Khanna who was senior to him. Thus, interference by executive in judicial appointments was cloaked in veils of politics and it started a disturbing trend in judicial appointments in India.
• Till 1976, India had witnessed emergency and implementation of 42nd amendment had casted a serious doubt on the ever growing power of executive in all spheres of democracy.
• In such an environment of growing executive influence, the collegium system evolved through three different judgments which are collectively known as the Three Judges Cases.
THREE JUDGES CASE – 1982 (E) – 1993 (J) – 1999 (J)
The Three Judges Case was delivered by Supreme Court amid changing political atmosphere of the country. Post Emergency and Constitution 42nd Amendment, Executive had become all powerful and had started their interference even in appointment of Judges as we have seen earlier.
►First Judges Case – S.P Gupta vs. Union of India (1982) – (In favour of Executive) • SC held – opinions of Chief Justice of India (CJI) and Chief Justice of respective High Courts were merely “consultative” and the power of appointment resides solely and exclusively with the Central Government. • Central government “could” override the opinions given by the Judges. Thus, the opinion of Chief Justice of India in matters of appointment was not given primacy in matters of judicial appointments under Article 217(1).
►Second Judges Case – S.C. Advocates on Record Association v. Union of India (1993) – (Primacy of Judiciary) – The matter was decided by Nine Judge Constitution Bench
• The Court considered the question of “Primacy of opinion of CJI in regard to appointment of Supreme Court Judges”. The Court said that the question had to be considered in the context of achieving constitutional purpose of selecting the best so as to ensure the independence of judiciary and thereby preserving democracy.
• Referring to ‘Consultative Process’ as envisaged in Article 124(2), – SC emphasized that Government does NOT enjoy primacy or absolute discretion in matters of appointment of Supreme Court judges.
• Court said that provision for consultation with Chief Justice was introduced as CJI is best equipped to know and assess the worth and suitability of a candidate and it was also necessary to eliminate political influence.
• Selection should be made as a result of ‘Participatory Consultative Process’ where Executive has the power to act as a mere check on the exercise of power by CJI to achieve constitutional purpose.
• SC held that initiation of the proposal for appointment of a Supreme Court Judge must be by the Chief Justice.
• Thus, Judiciary was given primacy and participatory consultative process was suggested for selection of CJI.
►Third Judges Case – (1999) – Re: Presidential Reference (Emergence of Collegium System)
• Supreme Court on a reference made by the President under Article 143 has laid down the following proposition with respect to appointment of Supreme Court judges
While making recommendation, CJI shall consult four senior most Judges of Supreme Court. This led to the emergence of present Collegium System. The opinion of all members of collegium regarding their recommendation shall be in writing.
The views of the senior-most Supreme Court Judge who hails from the High Court from where the person recommended comes must be obtained in writing for Collegium’s consideration.
If majority of the Collegium is against the appointment of a particular person, that person shall not be appointed. Even if two of the judges have reservation against appointment of a particular Judge, CJI would not press for such appointment.
A High Court Judge of outstanding merit can be appointed as Supreme Court Judge regardless of his standing in the seniority list.
PROBLEMS WHICH EMERGED IN THE FUNCTIONING OF COLLEGIUM SYSTEM
• Lack of transparency: Collegium System worked in complete secrecy and initially did not reveal the methodology or reasons provided for transfer or promotion of judges or even appointing senior lawyers as Judges of SC or HC.
• Nepotism – Accusations of favouritism and preferential treatment to members from judicial fraternity were raised. This also impacted quality of judgment specially in High Courts.
• Politicization of judiciary: Due to lack of transparency in appointing process, certain political appointments especially to High Court were witnessed.
• Absence of Permanent Commission: Law Commission in its 121st Report on Reforms for Judicial Appointments proposed to set up a National Judicial Service Commission for appointment of Judges. Even NCRWC in its 2002 Report highlighted the need for National Judicial Commission for the purpose of appointments to higher judiciary.
WHY DID THE SUPREME COURT DECLARE NJAC ACT AS UNCONSTITUTIONAL?
• Violation of Basic Structure – Five Judge Bench of Supreme Court [4:1] declared the Constitution 99th Amendment Act and the National Judicial Appointment Commission Act, 2014 as unconstitutional as it violated the Basic Structure of the Indian Constitution.
• Inclusion of Members of Executive – Constitution 99th Amendment introduced Article 124A which provided for the constitution and composition of the National Judicial Appointments Commission (NJAC) which apart from members of Judiciary also included Union Minister of Law & Justice and two Eminent Persons to be appointed by the Central Government.
• Violation of Independence of Judiciary – SC held that Article 124A was insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges to the higher judiciary as inclusion of members of executed violated independence of judiciary and the aspect of separation of powers. Accordingly, Article 124A (a) to (d) was set aside by the Constitution Bench as being ultra vires.
• Collegium System to Continue – The judgment officially allowed Collegium System for appointment and transfer to continue.