NEW DELHI, July 15: Even as it reserved judgement, the Supreme Court today differed with the Centre on the provision of nominating two eminent persons in the National Judicial Appointments Commission (NJAC) saying inclusion of laymen in the new system of judicial appointments “cannot work”.
“If you are talking of bringing layman into the NJAC, bring them here also(Supreme Court). Why are lawyers and judges sitting here. It’s not right, it cannot work,” a five-judge bench headed by Justice J S Khehar said.
The observations came during the final day of hearing with the bench reserving its judgement on the constitutional validity of the National Judicial Appointment Commission (NJAC) Act. In all, the arguments lasted 31 days.
Defending the provision for inclusion of two eminent persons, Attorney General Mukul Rohtagi said that “if we can have laymen in Consumer Commission and Tribunals, then why not in the six-member NJAC.”
He said the eminent persons will assess candidates’ integrity and their conduct.
“They are sitting one step below and are only part of the selection process. Here, they cannot be compared to be members of the Tribunals and Consumer Commission who are participating with judges to decide cases,” Rohatgi told a bench, also comprising justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.
The AG also opposed the idea of removing the veto power to the members of the NJAC and said “If you say that don’t give veto to somebody else, it will put the judges on a higher pedestal”.
Senior advocate K K Venugopal, appearing for Madhya Pradesh, had said that primacy of the judiciary is part of judicial independence and therefore the veto provision was “antithetical” to the concept of primacy and must be struck down.
Rohtagi further said that an overwhelming majority of countries across the world with independent judiciaries do not have judicial primacy in the matter of appointment of judges.
“In a cross-jurisdictional survey of 15 countries chosen from a wide spectrum, it was found that none have unfettered judicial primacy in the matter of appointment of judges to the higher judiciary,” he said adding, “our system has become too technical and NJAC is only an attempt to make the whole procedure broad based.
The bench then asked the AG, “What do you say about the idea of having a Commission without a law minister?”
The AG replied that the law minister is part of the executive and his role is to provide inputs on appointments.
Noting the submission, the bench said “is it mandatory to be a member of the Commission to give inputs”.
Rohtagi then shot back saying “What is the basis to say that minister will always be opposed to judges. NJAC is the same system as the past one but only with minor tweaks”.
The bench also questioned the AG as to why the norms for appointments of judges were left it to the wisdom of NJAC and said “why should norms be left to the charity of the body”.
Rohatgi submitted,”is it not proper to leave it to judges to decide the norms. We don’t want to force our views on them.
The AG said under NJAC, judiciary enjoys “pre-eminence” as it has predominant representation with three judges as opposed to two eminent persons and one member of the Executive.
“In fact, owing to the second proviso to Section 5(2) and Section 6(6) of the NJAC Act, two judges who disapprove of a particular candidate can ensure that such a person is never appointed.
“The right to reject a candidate approved by the judges on the NJAC cannot be exercised by the executive alone but requires at least one other member who does not represent the executive i.E. One eminent person. Hence in effect the NJAC Act represents a dilution of the role of the executive,” he said.
The Constitution bench, which appreciated the AG for his insight into the case, reserved its verdict on the bunch of petitions challenging validity of a constitutional amendment and the NJAC Act, meant to replace the two-decade old collegium system of appointing judges.
The apex court also extended the interim order on tenure of Additional judges of High Courts till the pronouncement of judgment in the case. (PTI)
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