New Delhi: The Supreme Court today posed questions in regard to the working of the National Judicial Appointment Commission (NJAC) for appointing judges to higher judiciary, asking how it would make judicial functioning “meaningful” and “accountable”.
“What meaningful role they are talking about. How can they make participants accountable,” a five-judge bench headed by Justice J S Khehar asked, when senior advocate Rajeev Dhavan was arguing against the new law that replaces the two-decade collegium system of appointment of judges by the judges.
“We are asking you this to understand before we ask them (government)”, said the bench which also comprised Justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kr Goel.
Dhavan said it was for the government to answer as to whom the six-member panel would be accountable.
The bench was referring to the statement of objects and reasons given in the National Judicial Appointment Commission Act, 2014, which says: “The said Commission would provide a meaningful role for the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process.”
Dhavan, who was arguing as an intervener in the batch of petitions challenging the Constitution's 99th Amendment and enabling NJAC Act, 2014, also assailed the provision of inclusion of two eminent persons in the six-member panel for selection and appointment of judges.
The Act provides that two eminent persons would be selected and appointed by three-member panel of the Prime Minister, Leader of Opposition or the leader of the largest party and Chief Justice of India.
The bench observed how two politicians, with Chief Justice of India “sandwiched” between them, decide on two laymen interfering in judicial appointments.
Responding to questions from the bench, Dhavan said “it is a question of purity and the standards to be maintained as far as judiciary is concerned. If purity is lost then everything is gone”.
Questioning the knowledge, width and the understanding of two eminent people who would be in NJAC, he said the power of judicial appointment could not be “bartered” in such a way.
Maintaining that the tenure of the eminent persons in the NJAC was for three years, Dhavan said once they are appointed they would be “nailed down” in NJAC for three years and there would be no way of getting rid of them.
Further, he said the entire exercise on two eminent persons was “farce” as there was a provision for nomination of one from reserved category, minorities and women.
The senior advocate said the provision of eminent persons in the panel “must be struck down on the grounds of essentiality, width and identity” of the judiciary.
He said the independence of judiciary and its preponderance could not be permitted to be diluted as it was the custodian of Constitution and balanced the rights of the people which they have surrendered to the political executive under the Constitution.
“It is the biggest surrender that civil society makes to the political executive and what balances that surrender is the judiciary”, Dhavan submitted.
“Just as one tinkers with the electoral process, the political executive is interfered with”, he said adding that similarly, there can be no tinkering with the domain of the judiciary by the political executive.
“If there is no democracy without rule of law, there can be no rule of law with democracy and the judiciary is essential to maintain the rule of law,” he said.