NJAC reflects the people’s will to replace the collegium: Centre to SC

The Centre on Monday defended in the Supreme Court the National Judicial Appointments Commission (NJAC), contending that it was the result of people’s will to replace the collegium system of appointing judges to the SC and high courts whose working was shrouded in mystery and have transparent, accountable and criteria-based appointment of judges through the National Judicial Appointment Commission (NJAC).

Contending that NJAC had been brought in after Parliament and 20 State legislative Assemblies had approved the government’s move, Attorney General Mukul Rohatgi appearing for the Centre told the constitution bench comprising 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. MPs and MLAs were the representatives of people and as such Parliament and Assemblies were in a better position to understand what the citizens wanted, he said.

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.

Further, efforts to set up the commission had begun in 1990 even before the 1993 SC verdict putting in place the collegium system facilitating appointment of judges by judges, the AG said.

Submitting before the court that it could not adjudicate on the "wisdom of the parliament" in choosing one model over another in appointment of judges, Mr. Mukul Rohatgi said that the second judges verdict (1993) 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".

At this submission, the Bench intervened and said: “Judges appoint judges is a nice catchy phrase, but it is not correct. Even under the collegium system, judges were appointed by the President.”

The AG, however, said the 1993 verdict had given the prerogative of initiating the process of appointing judges to the collegium by choosing the prospective candidates.

The NJAC Act and the 99th Constitution amendment had merely taken away this prerogative as this right was not essential for preserving the independence of the judiciary or the basic structure of the Constitution.

“Rather, the collegium holding the right to insist on the appointment of individuals as judges was against the constitutional checks and balances between the legislature, executive and judiciary,” he said.

People’s representatives in Parliament and Assemblies could not have adopted an ostrich-like attitude, remaining oblivious to the requirements of the changing times as reflected by people’s will within the country and the changes taking place in Australia, New Zealand, England and the United States, the AG said.

Even under NJAC, the right to appoint judges would rest with the judiciary since three of the six members of the commission were judges — Chief Justice of India and two senior most SC judges. If there was any attempt to appoint an unsuitable person as a judge, two of them could stall it by using their veto power.

If anyone was aggrieved by NJAC, it was the executive which was appointing judges for 43 years — from 1950 till the 1993 verdict of the SC. Now, the executive’s role had been minimised from 100 per cent to about 15 per cent as the NJAC would have just one member from the executive – the Union Law Minister.

The NJAC Act could not be struck down on the basis of speculation that the Law Minister and two eminent persons, to be nominated by a panel of the CJI, Prime Minister and Leader of Opposition in the Lok Sabha, would gang up against the judiciary and stall appointments by using their veto. It was unfair to suspect high constitutional functionaries and that they would resort to such approaches, the AG pleaded.

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."

The Apex Court was hearing of a batch of petitions filed by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others who are challenging the constitutional validity of the constitution's Ninety Nine Amendment Act, 2014 and the NJAC Act, 2014. Arguments in the case will continue.