New Delhi: The right of judiciary to insist on appointing judges is a “vital” part of its independence and basic structure of the Constitution which has been taken away by the National Judicial Appointments Commission (NJAC), a lawyers body on Thursday told the Supreme Court.
Senior advocate and jurist Fali S Nariman, appearing for the Supreme Court Advocates on Record Association (SCAORA), told a five-judge bench headed by Justice J S Khehar that the right to have its say in the appointments is the “core” of the independence of the judiciary.
“Right to insist is the core of the right. It is the right of appointment. It is not the only part of independence of judiciary but it is a vital part of it,” he told the bench, also comprising justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel which is hearing the petitions challenging the validity of the NJAC Act.
He was responding to the submission of Attorney General Mukul Rohtagi that judges, who will form a major block in the six-member NJAC, will have the primacy, if any, as they can always block a bad appointment.
Rohtagi had said that only the right to insist on appointments has been taken away and this does not infringe the basic structure of the Constitution.
Nariman, at the outset, referred to various write-ups that had hailed the 1993 verdict by which collegium system of appointment of judges was conceived and operationalised.
Seeking quashing of the constitutional amendment and the law which set up the NJAC, he said that material alteration has been affected in the Constitutional scheme by allowing two of the six NJAC members to veto an appointment and it amounted to substituting the Constitutional scheme.
“It jeopardises the entire law. This NDA government did not use its own head, it rather followed the Congress party’s model,” he said.
On the issue of two eminent persons, to be nominated in the NJAC by the panel of Prime Minister, the Chief Justice of India (CJI) and leader of opposition, Nariman said that they should not be given the voting right.
“You consult the eminent persons. Make them consultees and do not give them voting rights,” he said adding that at best, they can be made part of “decision making process and not to the decision taking process”.
The senior lawyer also objected to Centre’s submission that NJAC has been brought as the people wanted it and said, “why do people want it because it is being fed by media”.
Responding to the criticism that he had been critical of the collegium system in his autobiography, he said, “I also criticised it. But that is not the point here. The point is the institution and its independence. The Supreme Court is the last word on the interpretation of the Constitution”.
He also said that Justice J S Verma, who wrote the majority judgement in the second judges case in 1993, used to consult various eminent lawyers in the appointment process of judges and latter this practice was not followed.
Nariman, in the day long argument, referred to a provision of the Judges Protection Act, 1985 which provides immunity against prosecution to a judge even after his retirement.
The word “was” has to be deleted, he said adding, “I am sure none of your Lorships would bother. Judges who are honest will not bother whether this is there or not.
He also dealt with conventions and practices prevailing in appointment process of judges, prior to the 1993, in the higher judiciary and said that the executive did not have the last word and consultation with the CJI was the must.
By introducing NJAC, a whole new scheme has been put in place which has substituted the earlier one and hence “damaged and altered” the basic structure of the Constitution.
“There must be a reason for putting the word ‘consultation’ in the Constitution. It is mandatory that the CJI has to be consulted. Can a judge be appointed without consultation of CJI? The answer is No. This is against the doctrine of basic structure,” he said.
“Every government all over the world wants to control the judiciary. They are not different. I am not saying that this government would alone will like this,” he said.
Nariman also referred to speech made by Dr B R Ambedkar in the Constituent Assembly debates on appointment of judges in higher judiciary and said that he did not want to give primacy to the executive also.
He then said that the consultation was made obligatory because the judges are qualified to give the advice and moreover, the apex court is the ultimate decision maker.
Nariman said that the appointment of judges is not “purely” executive function and it is rather “quasi-executive” function where judiciary has an important role to play.
At the fag end of the day, the Attorney General referred to various records pertaining to appointment of judges during 1950s and said that there was healthy exchange between government and the judiciary.
Rohtagi said that so far as the appointment of judges in the High Court was concerned, the proposal was initiated by either the government or by the judiciary.
After that, there used to be a discussion between the two wings and then appointments were made by the President following the consultation with the CJI, he said.
“In first eight years, the executive did not argue with the CJI or oppose any appointment except in one case,” the bench said and asked the AG as to whether the Prime Minister had objected to any such proposal during the 1950s.
The bench also asked the AG to verify and respond on the issue relating to a former Supreme Court judge that he allegedly did not write enough judgements during his tenure as a judge of various High Courts.
Rohtagi said that records pertained to the number of judgements delivered by a division bench (DB) to which the former apex court judge was a part.
“How can a judge who doesn’t deliver in single judge bench, suddenly start writing 1,000 judgements in DB,” he said.
Nariman, who would resume the arguments tomorrow, said that independence of judiciary has been acknowledged as part of basic structure of the Constitution and this also includes the right to appointment of judges.
The bench asked him to counter the submission of the Centre that “lay persons” have been kept in panels, meant to select and appoint judges, in various countries and why the same cannot be applied here. PTI
