Judges appointment through NJAC will of the people

New Delhi: The Central government on Monday told the Supreme Court that it was the will of the people to have transparent, accountable and criteria-based appointment of judges through the National Judicial Appointment Commission (NJAC) instead of the collegium system whose working was shrouded in mystery.

Contending parliament and the 20 state assemblies, which have backed the NJAC, represented the people, Attorney General Mukul Rohatgi told the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel that it was the people who wanted the change in the method of judges' appointment.

Describing the junked collegium system akin to "you scratch my back, I will scratch yours", he sought to thrash the challenge to NJAC on the grounds that it compromised the independence of judiciary as judicial members of the commission were not in majority and did not have the "right to insistence" in the appointments.

Asserting that there was no primacy of judiciary in the constitution, Rohatgi told the court that the right to insist upon an appointment is not available to the judicial members of the NJAC comprising chief justice of India and two seniormost judges after him.

The court was told this in the course of the hearing of a batch of petitions including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others challenging the constitutional validity of the constitution's Ninety Nine Amendment Act, 2014 and NJAC Act, 2014.

Assailing the petitioners' position that the NJAC is an assault on the independence of judiciary - described as the basic structure of the constitution, Rohatgi told the court that appointment of judges was not a part of such independence which only starts with after appointment in terms of their conditions of service and working.

However, on being questioned by the court, he conceded that even appointment of judges formed a part of independence of judiciary but a "very small" part.

Telling the court that it could not adjudicate on the "wisdom of the parliament" in choosing one model over another in appointment of judges, Rohatgi said that 1993 second judges verdict of judges appointing judges was "coloured by the expediency of the time then and the court should have changed it itself with things getting normal", referring to the mid-1970s which saw the supercession and mass transfers of judges. He said if the court had not corrected the position on its own then there were "no fetters on parliament to restore the original provision of article 124 of the constitution which gave government primacy in the judicial appointments".

Defending NJAC, Rohatgi contended that under the new system, the government's powers in the appointment of judges had been diluted, as it was one of the six members of the NJAC.

Scoffing at the suggestion that two eminent people on the NJAC will collude with the law minister to render judicial component ineffective, he said there was no reason why these two representing the diversity of society would not hold the CJI and two other judges in reverence.

Describing the resistance to NJAC as an "argument of psychosis" based on "surmises" and "possibility of abuse of the process", he said a possibility can't be a basis of challenge while any "actual abuse" can be addressed by the court.

Rohatgi, asserting that nine out of 10 names for the appointment of judges would get cleared without any dissent, argued: "If CVC (central vigilance commissioner) can be appointed by people at loggerheads (prime minister, home minister and leader of opposition) it is absurd to have a proposition that two eminent people on the NJAC will have a jaundiced or evil eye."