SC questions govt on the role of two persons in National Judicial Appointment Commission

New Delhi: The Supreme Court on Wednesday quizzed government over the role of two eminent persons in the six-member National Judicial Appointment Commission (NJAC) wondering how a person with no background of law can help in determining the suitability of a person to be a judge of the higher judiciary.

The government also faced a tough time on its stand the new law was a “public stated” process for appointment of judges with the court observing that “It is a matter of time to see whether our civil society is mature enough.”

“If the eminent person is not associated with law or has no nexus with law, what is their role? What will they assist the Commission in finding out?

“You are saying they will have material data with them and identify the facts based on that. We don’t need them to see which judge has settled how many cases in a year or what is their annul income,” a five-judge bench headed by Justice JS Khehar said.

The observations came during Attorney General Mukul Rohatgi’s submissions that the new law for appointing judges was more transparent and in sync with the “need of the times”.

“What is the harm? Where is the stumbling block that we should not have eminent persons when they had no legal aptitude. This method is publicly stated process of appointment. It is more accountable, upholds democracy, rule of law and checks and balances.

“Sensitivity does not come from reading law books. Today we have only one woman judge in the Supreme Court. Why? There is something wrong in the previous system which needs to be changed,” Rohatgi told a bench, also comprising justices J Chelameswar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel, which is at the last lap of its marathon hearing to determine the constitutional validity of the National Judicial Appointment Commission (NJAC) Act.

“It is the wisdom of parliament to have this method. It is shocking to say that this method will bring down the world. This is nitpicking. Today you have a codified mix,” he said.

Elaborating on the role of eminent persons, the AG said that they were required to collect data and verify it.

“Their very presence in the NJAC is a measure of public confidence. Earlier there were no such qualified norm,” he added.

He said that there is no warrant of “exclusivity of judges” in appointment of judges. As per the new selection process, vacancies will be advertised and requirements for the post will be given.

“We want people who fulfil the criteria like cases dealt, annual income etc to apply. We will give the requirements. Everybody in the High Courts will get to know,” the AG said.

On this the bench said,“this is opportunity and not transparency in the new process”.

The AG replied that the guidelines which will be stated will make it transparent.

“Transparency is when you have a public-stated process. This is what is desirable. Dossiers and files will be made. Eminent persons will be judge of other things,” he said.

The five-judge bench then remarked,“if that was the only deficiency why not put that in the old collegium system”.

The AG replied that is for the Parliament to decide and that was its discretion and “the only test here is whether it will topple the independence of judiciary”.

Noting the submission, the bench said “It is a matter of time to see whether our civil society is mature enough”.

The AG further said that appointment of judges is only a small pillar of the independence of the judiciary. He said that the primacy of the Chief Justice of India in the matter of appointments was developed only in Second judges case with a view to resist the appointments pushed by the executive.

“The basic structure comprises many features like several pillars in a foundation. The significance of these pillars is that if one of them is removed the entire edifice of the constitution will fall.

“Hence, in judging a amendment, the question to be addressed is whether the said amendment would lead to a collapse of the edifice of the Constitution,” he said.

The basic structure of the Constitution has no connection with appointment and there is no judgement which suggests that independence of judiciary is affected by the appointment of judges, he said adding that “NJAC is only a replacement by a better system of appointment”.

Rohatgi said that Parliament’s power to amend the Constitution is plenary, subject to only one restriction, i.e. it cannot abrogate the basic structure of the Constitution, which has to be culled out from specific articles of the Constitution.

“Primacy of the judiciary in the matter of appointment of judges to the higher judiciary is not a basic feature of the Constitution and has no necessary connection with judicial independence. Assuming that there is primacy, even under the new dispensation, no appointment will be made unless at least 2 out of 3 judges concur in the same,” he said.

He also opposed senior advocate Fali Nariman’s submission that NDA government did not take into account the proposal made by the Commission headed by former Chief Justice of India, Justice MN Venkatachaliah.

“Parliament is not required to explain the reasons for not accepting the recommendations of Justiceh Venkatachaliah,” he said.

The AG said that the views of the Venkatachaliah Commission as well as several other views on reforming the judicial appointments process were taken into consideration by the Parliament for the enactment of the 99th Amendment. The same is evident from the speech made by Minister of Law and Justice.

Earlier in the day, senior advocate KK Venugopal, appearing for Madhya Pradesh, said the new law for appointment of judges makes the judiciary more independent in selection of judges.

“Article 124-A substitutes the scheme that was evolved for appointment of members of the higher judiciary under the original Article. A National Judicial Commission consisting of six members has been brought into existence. This structure is totally different and has no relationship at all to the original Article 124.

“To therefore argue that the collegium system has been ‘cast in stone’ and hence any departure therefrom, which is inconsistent with the collegium system, will impact the independence of the judiciary and therefore violate the basic structure is unjustified,” Venugopal said.

He said that the new structure cannot be challenged merely on the ground that it does not provide for the selection being made other than by a Collegium consisting exclusively of judges.

Senior Advocate Soli Sorabjee, appearing for Haryana, also argued in favour of the NJAC.

The AG also rejected the Madhya Pradesh government’s stand that veto provision in the NJAC was “bad” and on conceding primacy to judicial members in the appointment of judges if three judicial members are unanimous on an appointment.

The Attorney General would resume his arguments on Wednesday.

PTI