#NJAC Conundrum; Re-Cap of Arguments and Counter Arguments with Written Submissions

Senior Advocate Fali S. Nariman appearing for Supreme Court Advocates on Record Association

Defending Judicial independence: Mr. Nariman had contended that the Constitution­ framers had stressed on insulating the superior judiciary ­ the Supreme Court and high courts ­ from legislative and executive control. He called the present collegium system as 'opaque' and added, "The framers of the Constitution had never intended to give the power of appointment of judges to the superior judiciary to the executive."

He alleged that the NJAC Act was unconstitutional on two counts. One, the law was enacted by Parliament when the constitutional provisions were to the contrary and, two, the provisions of the NJAC Act attempted to encroach into judicial independence, thus violating the sacrosanct 'basic structure' principle, he said. He also maintained that NJAC was a danger to independence of judiciary as the new system allowed the executive to veto suggestions of the Chief Justice of India and two senior­-most judges of the Supreme Court on appointment of judges.

Mr. Nariman said judges' appointment was at the heart of judicial independence and no executive interference could be allowed in this matter. "National Judicial Appointments Commission is complete anathema to judicial independence as the proposal on judges' appointments given by the CJI and two senior-most judges of the Supreme Court could be rejected even by two eminent persons who could come together to veto it," he added.

Mr. Nariman submitted that the Constitution provided that the President (read executive) would appoint judges to the Supreme Court and high courts in consultation with the CJI, but the then law minister A.K. Sen had told Parliament that the CJI knew who was best suited for a judge's post and his recommendations needed to be honoured.

"That was real judicial independence. The executive always honoured the CJI's recommendation despite the constitutional provision allowing it to appoint judges in consultation with the CJI. They gave primacy to the CJI's view on judges' appointment," he said.

Copied a Congress Bill: Mr. Nariman had also accused the government of merely copying a Congress bill on the NJAC instead of using its own brains. "This government copied the Congress bill. If they had used their head, the material provisions (of the NJAC) would have been much better," he had said. Vesting the power of appointing judges on the executive is inappropriate and arbitrary; Mr. Nariman had told the Supreme Court bench.

Legal merit, not political merit in appointment: On the inclusion of lay people in the appointments procedure, he said judges should be selected on legal merit and not political merit. It would be absurd to assume that a non-judicial person can decide on the suitability of a candidate for the post of a judge, Nariman argued, cautioning about the risk that such appointments may be based on considerations other than legal merit and ability.

Basic structure of Indian Constitution: Mr. Nariman also refuted AG Mukul Rohatgi's claim that the manner in which judges are appointed to the higher judiciary was not a basic structure of the Constitution and that the NJAC did not violate the independence of judiciary. He argued that the process of appointments was the core of aspect of independence of judiciary. By substituting the system, the primacy of the CJI in initiating an appointment had been taken away.

Mr. Nariman pointed out that even if three judges in the NJAC wanted to appoint an advocate as a judge, the power could no longer be exercised unless they secure an agreement from a fourth non-judge member in the NJAC. He said the Union law minister along with one or two eminent persons could always veto a recommendation made by the CJI and two other judges. This would show that the CJI's right to appoint a person had been taken away.

No voting rights for eminent persons: He had further contended that the eminent persons to be nominated to the NJAC should not be given voting rights. "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 the "decision-making process and not to the decision-taking process".

Nariman though couched his support for the collegium system by stressing on the need to reform it to ensure that it does not remain a "closed shop" for the public and the media.

Prosecution of Judges after retirements: He also urged the Apex Court to jettison a provision which currently prevents the prosecution of any judge after he has retired for any malfeasance during office. "This gives a very bad impression (to the public)…. How do you remedy the system? You have a few bad eggs. You have to put the fear of God and law in them," he said, urging the court to do away with this provision of law. "Can a judge be totally immune? Why remove this fear? If you are an honest and honorable judge would you bother?"

Venkatachaliah model: The Supreme Court was proposed by Mr. Nariman that the controversy over the NJAC could be rested if the Government wills to accept in letter and spirit the body recommended by former CJI M.N. Venkatachaliah with a preponderance of judicial members.

Justice Venkatachaliah, who had headed the national commission to review the constitution's working, had earlier recommended a replacement to the collegium system in form of NJC with preponderance of judicial members. A bill too was brought by the Vajpayee government on that line in 2003 but it lapsed due to general elections.

You may read Mr. Nariman's written submissions in response to the Attorney General's arguments, here.

Senior Advocate Anil Divan, appearing for Bar Association of India

Independence of the judiciary: Mr. Divan had argued that the five­ Judge Bench should consider the prevailing tendencies while determining the constitutional validity of the NJAC Act. He referred to the infamous supersession of senior judges by the executive during the Emergency era and said that due to the tendency of the executive and legislature to interfere in the independence of judiciary, the tradition and convention had been to insulate the judiciary from interference by other two organs of governance.

Besides, there was the contentious issue of any two members being able to veto any name for appointment. The NJAC also did not specify any fixed tenure for judges nor any procedure for removal of judges, Mr. Divan argued. He also wondered what would happen in case of a tie in a six-member body, which will comprise the top three judges of the court, the law minister and two eminent people.

Senior Advocate Arvind Datar appearing for Madras Sales Tax Bar Association:

Basic Structure of the Indian Constitution: Mr. Datar had contended that the NJAC was a total negation of the basic structure of the Constitution and ought to be struck down. "What the government is now saying is I give you (judges) the power (to appoint), but it is subject to my control," he said.

He had told the Bench that, "The power to regulate NJAC must be in the Constitution itself and not left to any ordinary law. He also told the bench that NJAC only eclipsed collegium and the latter is not dead." Attorney General Rohatgi amongst the ones arguing, told the bench… If you can't trust, nothing will work."

Independence of the judiciary: Mr. Datar had also contended that the new law "destroys" the independence of judiciary as it defies the principle of separation of powers by bringing it under parliamentary control.

"The creation of the National Judicial Appointments Commission (NJAC), in the present form, would destroy independence of judiciary and also the principle of separation of powers.

"From the constitutional control, the 99th amendment makes the judiciary under Parliamentary control," he added.

Mr. Datar pointed out that the NJAC Act was enacted for putting in place a procedure for the appointment of judges to the apex court and High Courts, including their Chief Justices.

But there were provisions under Section 6 and Section 12 which were substantive for laying down the qualifications of those who could be considered for appointment as judges. Further, he claimed that since all these rules and regulations were subject to review or amendment by Parliament which, they offended the independence of judiciary, one of the basic structures of Constitution.

He argued, "If a judicial commission has to be created, its composition, eligibility criteria and matter of appointment will have to be laid down in the Constitution itself. If it is part of ordinary legislation or delegated legislation, the entire appointment process will depend on the whims and fancies of the Government in power, whether having absolute majority or a coalition.

The power of appointment of Supreme Court and High Court Judges was always intended to be in the Constitution itself.  The framers of the Constitution never intended that the appointment could be subjected to ordinary laws or delegated legislation."

He had also presented a detailed study on the method of judges' appointment in 182 member countries of the United Nations.

Eminent persons: Mr. Datar also rebutted the Centre's argument that eminent persons are necessary to ensure participation of the general public. He said, "When there is no participation of general public through eminent persons in the appointment of any other constitutional functionary such as CAG, Chief Election Commissioner etc there is no reason why there should be such participation only for judges."

He rebutted the argument that even if the 99th amendment is held to be unconstitutional, the collegium system would not revive. "The impugned amendment and act does not result in the collegium being 'dead', it is only eclipsed. The collegium system is law declared by the Supreme Court under Article 141 and has been accepted as binding even though the procedure was laid down in a presidential reference," he said.

Senior Advocate Ram Jethmalani appearing for intervener Advocate Ashish Dixit

Independence of the judiciary: Mr. Jethmalani had contended that the NJAC was "unconstitutional" as well as a "serious assault on the independence of judiciary". Putting forth the point, he said, "What could happen if the law minister often sits with the Chief Justice of India and the two senior-most judges of the Supreme Court to select judges to the superior judiciary."

Mr. Jethmalani illustrated the Government's attitude by his own example. He spoke about his expulsion from the party and the subsequent behavior meted out to him. He told the Court that he recently wrote an article for Sunday Guardian on black money asking searching questions to the finance minister (Arun Jaitley). But the government blacked it out by pushing advertisements in the paper. He subsequently had to spend huge amounts of money to put his article as an advertisement in other newspapers.

"If this is the approach of the government, what would happen to the independence of judiciary? Moreover, the law minister with another eminent person as member of NJAC can veto the views of the CJI and the two senior-most judges. NJAC with law minister is meant to diminish, denude and reduce the primacy of the CJI and destroy the prestige of the judiciary," Mr. Jethmalani said.

"The only person who qualifies to be included in the NJAC is the leader of the bar and not the law minister," he said.

Defending the collegium system: Mr. Jethmalani vehemently defended the collegium system and asserted in his (written) response to the written submissions of the Attorney General that he has not seen a single judge who can be compared with the worst judges produced by the earlier system.

He further contended that the system which was being followed before the Second Judges case was a system which produced the atrocious Jabalpur Judgment and the minority judgment in the Keshavnanda Bharati's case and that the collegium system created by the second and third judges case is a vast improvement. "The AG with his private knowledge about bad judges is entitled to have his own opinion but speaking for me, I have not seen a single judge who can be compared with the worst judges produced by the earlier system. The personal assertion of the AG is not supported by any admissible evidence and cannot influence the decision of this case," said Mr. Jethmalani. 

Article 50 of the Indian Constitution: "The separation of the Judiciary and Executive mandated by Article 50 leads to the conclusion that Executive should have no vote in the appointment process but only a full opportunity of providing the consultee with all relevant information about the legal knowledge, freedom from fear, operation of any prejudice in favour of or hostile to one or the other litigants. It is difficult to understand what kind of new exigencies have arisen to warrant a change of the present system. Are we to take the assertion of the Attorney General as binding on this court that the character of politicians has now so improved that the Executive must have a significant role and power in the matter of appointment of Superior Judges and the so called eminent people with undefined qualifications must share the Judiciary's power of having the final and conclusive voice."

Eminent Persons: "I am myself one who has expounded long ago the idea of National Judicial Commission but certainly not a Commission which has two laymen who may have no knowledge whatsoever of what kind of intellectual equipment, integrity and experience they should possess."

Shreya Singhal: Mr. Jethmalani submitted that even a Constitutional Amendment Statute has to be declared invalid of it's too vague and makes the task of its application or enforcement impossible or even difficult. Relying on the landmark Judgment of Supreme Court in Shreya Singhal v. Union of India he submitted that the reference to two eminent persons in the National Judicial Appointment Commission Act is provision of this kind and void.

You may read the full text of Mr. Jethmalani's response to AG's submissions, here.

You may read Mr. Jethmalani's written response to AG-Part 2 & 3, here.

Senior Advocate Prashant Bhushan

Independence of the judiciary: Mr. Bhushan had supported Mr. Jethmalani's arguments and had submitted, "The government should never be allowed to play a direct role in the selection of judges. Inclusion of law minister will compromise the independence of judiciary as the executive representative will frequently sit with CJI and senior judges of SC. These days, we have all kinds of law ministers. We have one in Delhi who has a fake law degree."

Another objection brought forth by Mr. Bhushan was with regard to the participation of the Prime Minister and the Leader of Opposition, along with the CJI to select two eminent persons. The Court however rebutted this objection, stating, "PM and LoP are mostly at loggerheads and including them in the selection process is meant to make it fair as far as possible."

Senior Counsel and SCBA President Dushyant Dave

Attack on the collegium system: Mr. Dave tore into the collegium system saying "what had happened in the past 22 years under the collegium was difficult to digest" and there was "so much of frustration and disappointment".

"My Lords should wear a burqa and roam in the court corridors to hear the way lawyers talk about the judges of this court. You will get first-hand account of the rotting justice delivery system. The kind of lawyers who are being appointed as judges is a disgrace," he said.

Senior Advocate Rajeev Dhawan

Hit and trial: Mr. Dhawan had opposed Centre's submission that NJAC had an element of "hit and trial" and it will have to be seen how the new system works.

"The 99th amendment is a thoughtless piece. Constitutional amendments are not made for trial. It is too serious an issue and cannot be left to hit and trial. It cannot be put on experimental basis. We cannot experiment with the Constitution," Mr. Dhawan had said opposing the NJAC Act.

Contending that the independence of judiciary is inextricably linked with the appointment process, he said the independence of judiciary cannot be maintained when the power to appoint judges rests with the executive.

"Why are we eager that there must be a reform. Everything is not vulnerable to change. What is the compulsion for the change. I agree, at the maximum, there might be a body to look into the performance of the judges. But, not beyond this. 

"The collegium system was working perfectly. Appointment of judges is not a thing to be played in the hands of the Parliament. What is the basis of making this change," Dhawan told the bench

Senior Counsel Harish Salve appearing for Haryana

Refer matter to the larger Bench: Mr. Salve had urged the court that in order to give weight to the entire consideration of the issue, the matter should be referred to larger bench of nine or 11 judges.

He said that the issue involved – the appointment of judges – was pivotal to the democracy and for an authoritative pronouncement it should be referred to larger bench.

Senior Counsel T.R. Andhyarujina appearing for the intervener

Independence of the judiciary: Mr. T.R. Andhyarujina had wondered could it ever be a case that in order to uphold the independence of judiciary, the appointment of judges should rest with the judiciary? He said that this view finds no support either in the constitution or in any jurisdiction in any other countries.

"If appointment of judges by the judges is a part of the basic structure, then 1993 judgment needs to be relooked," he said adding that jurists world over has described this as an appropriation of judicial powers by the judiciary.

Senior Advocate K. Parasaran appearing for Rajasthan

Accountability: Mr. K. Parasaran had explained to the court why the power to appoint judges was entrusted to the executive with the caveat that there should be consultation with the CJI before such appointments.

"Executive has been saddled with power and at the same time made accountable to Parliament. If the executive made a bad appointment to the judiciary, Parliament can haul it up and the Supreme Court can examine the validity of the appointment. However, when the judges (collegium) make a bad appointment, there is no accountability," Mr. Parasaran said.

Attorney General Mukul Rohatgi

Nine-Judge Bench judgment not valid for NJAC: Attorney General Mukul Rohatgi had contended that the 22-year-old judgment (The Second Judges Case) by a nine-judge bench, which established the "primacy" of the previous collegium system in appointing judges, was not valid in the case of NJAC.

"The nine-judge bench decision interpreted Article 124 of the Constitution, which according to me, was wrong. It does not require a reconsideration now since Article 124 has been amended by the government. The very basis of the nine-judge bench decision is now gone," Mr. Rohatgi said. He argued that if the five-judge Bench headed by Justice J.S. Khehar, currently hearing the case, still holds that the previous judgment was relevant for adjudicating the case, it must be heard by an 11-judge bench.

Previous records of Judges' appointment: Mr. Rohatgi had further brought to the court records of judges' appointment to high courts from the Nehruvian era and told a five-judge bench headed by Justice J S Khehar that the proposal to appoint a person as High Court (HC) judge was initiated both by the Chief Justice of the HC and the chief minister of the state.

The Chief Justice of the HC and the CM used to discuss the proposed names, arrive at a consensus and then write to the CJI for recommending it to the President for appointment. Before the President approved and signed the appointment, the PM and later the PMO used to clear the name, Rohatgi said.

"It appears from records that in general, there was never a dissent on the names proposed either by the CM or the chief justice of the HC," he said.

Hit and Trial: Mr. Rohatgi had candidly submitted before the Bench that the National Judicial Appointment Commission (NJAC) for appointments to higher judiciary had a component of a "hit and trial" experiment for finding the best people for the posts.

Contending that there was an element of uncertainty in every new experiment, Attorney General Mukul Rohatgi told the bench that similarly there was "hit and trial" component in the NJAC.

Urging the court to give the NJAC a chance to have its run before being subjected to any critical evaluation, Rohatgi said "God knows" what would eventually emerge from it in terms of selection of judges.

Collegium system was non-transparent: Attacking the collegium system of appointment as being devoid of "transparency, rules and guidelines and something happening in a closed room away from sunlight", Mr. Rohatgi said the blame for the system`s failure lay at the doorsteps of the government, but sought to know if this still prevented the parliament from putting in place a "broad-based, healthier, transparent" NJAC.

Power of executive diluted: Mr. Rohatgi said that the power of the executive in the NJAC has been diluted as there is only one representative that is Law Minister in it in contrast to three Supreme Court judges.

"Under the Constitution, the power was vested with the Executive. Then under the Collegium system judges started appointing judges in consultation with the Executive. Now the third model has to be tested independently. It is a healthy mix," he said.

NJAC reflects people's will: Mr. Rohatgi had defended the 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).

You may read the written submissions of the AG here.

Solicitor General Ranjit Kumar

Collegium was a failure: Solicitor General Ranjit Kumar, supplementing Attorney General Mukul Rohatgi's submissions had argued that the "collegium was a failure" and that it was unfortunately working on a model of "intra-dependence" of judges where they decide among themselves who to appoint. "I can cite 20 cases as examples but I don't want to take names. There is a former chief justice, who became a Supreme Court judge, who had said 'I have to obey my masters to appoint judges in the HC because I want to go to Supreme Court," said Mr. Kumar.

Mr. Kumar said, "The collegium system has no transparency and lacks accountability. In contrast, the National Judicial Appointments Commission, brought in by a constitutional amendment, has the necessary checks and balances. NJAC will strengthen the independence of judiciary."

Comments from the Bench:

The whole thing looks unworkable

The arguments over NJAC before the Constitutional bench began in March. Justice J. Chelameswar had then referred to Section 5 of the NJAC and remarked, "The whole thing looks like an unworkable situation."

"Now that the AG says RTI will apply to it, we don't know how it will work."

This was in reference to a statement made by Attorney General Mukul Rohatgi earlier, saying that the appointments would be subject to RTI queries and the public would know why people were being selected."Now that the AG says RTI will apply to it, we don't know how it will work," said the court.

The Bench had said that even though transparency was a "laudable object", it may not be favorable to make public negative remarks made against the judges during deliberations by the NJAC.

The Bench asked, "What if in the opinion of the three judges, a candidate (a judge or a lawyer being considered for appointment or elevation) is casteist or communal, or is found misleading or misrepresenting? Will such information be also open for disclosure? How can it be open? Such candidates have to continue functioning after all?"

"The most important is the independence of the judiciary."

"It is ultimately the primacy of the independence of the system that we need to protect. Who is in it and who is not, or whether CJI has enough power or not, is not the real question for us. The complexion of the new body or its composition or its nomenclature are not important. The most important aspect is the independence of the judiciary,"

"There was a system (collegium) and we think it was good. The government felt that it needed to be replaced with something else. It is the choice of the Parliament to make a system but that system has to be independent and compliant with the basic structure of the Constitution. The system is alright only if the government has done so. We then don't care whether none of us in it or all of us in it,"

"It is not easy to say yes or no to an appointment. It is a collective voice of the institution and we have always taken it as a great responsibility".

"Our experience tells us about people (being considered for appointments). Whether it is possible for you to suggest two names, who will be able to suggest the names of the judges? The question is whether you can name a person of eminence who can name judges," the Bench asked AG.

The Bench told petitioner Bhim Singh to submit legal arguments and not sentiments. Justice Khehar was highly unconvinced on the point that two suggested eminent persons (by one of the counsels) can contribute to the appointment of judges. The Constitutional Bench looked determined to focus on NJAC without previous legal positions to avoid referring it to eleven judges.

"If we do not decide the issue of NJAC correctly, the nation will curse us."

After Mr. Jethmalani and Mr. Bhushan had completed their arguments in April, the bench had observed, "This is a serious issue. It is an important crossroad in the history of the country. The whole nation is watching us. If we do not decide this issue correctly, then the nation will curse us."

"Don't put the new law as good or bad."

As Mr. Jethmalani stoutly defended the collegium system, the Supreme Court had opined in July that the new National Judicial Appointments Commission Act (NJAC) which regulates the process of appointment of judges should not be seen as "good or bad" and rather tested on the proposition that whether it conforms to the basic structure of the Constitution or not.

"Don't put the new law as good or bad. If it meets the parameters of the basic structure, work it out," the Court observed.

NJAC cannot be justified or junked by comparing with other countries

When Mr. Datar had presented a detailed study on the method of judges' appointment in 182 member countries of the United Nations, the bench made it clear that NJAC could not be justified or junked by comparing it with the best practices being followed in various countries for the appointment of judges to the higher judiciary.

NJAC is a too serious issue and can't left to 'hit and trial' or 'God'

The Bench was hearing AG Mukul Rohatgi's submissions who said that the National Judicial Appointment Commission (NJAC) for appointments to higher judiciary had a component of a "hit and trial" experiment for finding the best people for the posts. But the court was not convinced.

"Only problem is that we can`t leave it to God. It is not a hit and trial business," the court told Mr. Rohatgi reminding him that it was too serious an issue to be left to "hit and trial" or "God".

You cannot malign our politicians and call them corrupt

The Bench came to the rescue of the Parliament's authority to formulate laws and rapped Advocate M.L. Sharma for insulting the Parliamentarians.

The Bench was open to hear all kinds of legal arguments that both the sides could use to prove their point. However, it said that it would not let any party to attack the Parliament and the lawmakers for framing this law.

Opinion of jurists and advocates:

National Judicial Appointments Commission is a greater disaster than Collegium system: Mr. Iqbal Chagla, Senior Advocate, Bombay High Court

Live Law: What, according to you, are the challenges or lacunas that derail the judiciary in the current scenario?

Mr. Chagla: I don't think the judiciary is being derailed. But the challenges are, and they have been in the past, from the executive. That was the time when there were transfer of the judges and punitive transfers, when we all fought for the judiciary. I myself had filed a petition here in the Bombay High Court and the matter went to the Supreme Court which then, later became the 'First Judges Case'. So, we extremely exercised for our judiciary and to protect our Judiciary and that led to the change from the executive appointing the judges to the Collegium system of judges appointing judges. We were very happy at the time that happened but, the experience has shown that the Collegium system has merely failed us. Now, this led to the recent Bill that has been introduced in the Parliament- the 'Judicial Appointments Commission Bill' but I think that this is even a greater disaster and this is no substitute for the reasoning that there should be transparency in the Collegium. There is even less transparency here. You have the appointment of a six-member commission, two of them being 'eminent persons', whatever that may mean and whose dictionary and then whose vocabulary. So, now we have these 'two eminent persons' who are to decide, who our judges should be in the Supreme Court and the High Court and any two members have the right to veto. So, if you have all the judges and all the others saying that yes, these are the right persons, then these two gentlemen or the Prime Minister or the Leader of the Opposition, they can derail the whole thing completely!

Enacting the Judicial Appointment Commission without consulting the Supreme Court may lead to a Constitutional crisis: Prof. Upendra Baxi

Live Law: What are your thoughts on the National Judicial Appointments Commission? Do you think it will be an improvement over the old Collegium system?

Professor Upendra Baxi: Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the "system" are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law. In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) Justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word "consultation" shall mean the "consent" of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary's affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change? The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable conflict between Parliament and the Supreme Court. The basic structure here is the independence of the judiciary and judicial review. Even under Kesavananda Bharati v. State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis. (For more information, please refer to my article)

The most serious flaw in NJAC is that any two members of the Commission can veto the decision of the majority which would result in stalling appointments: Eminent Jurist and Senior Advocate P.P. Rao

LiveLaw: Sir, the issue pertaining to judges' appointment has been a critical one in our country ever since the first judges case. What is your observation about the judges appointment in the country and how do you assess the mechanism of collegium system? Are you in favour of NJAC or against it? 

Mr. P.P. Rao: In the beginning, there was no problem. Prime Ministers Jawaharlal Nehru and Lal Bahadur Shastri showed great respect to the judiciary and accepted almost all the recommendations made by successive Chief Justices of India for appointment of Judges of High Courts and the Supreme Court. After the supersession of Judges in 1973, the attitude of the Central Government changed. I was one of the lawyers who argued for the Collegium system before the nine-Judge Bench in 1993 with the fervent hope that if the judiciary had the last word in the matter of appointments and transfers of Judges; it would strengthen the independence of judiciary. We all hoped that the best of candidates would be selected by the Collegium and vacancies would not remain unfilled for long periods. Experience has belied our expectations.  Justice J.S. Varma, the author of the majority judgment in Supreme Court Bar Association v Union of India, (1993) 4 SCC 441, himself was disillusioned about the functioning of the Collegium system. Then we started demanding entrusting the task to a Judicial Commission.   The National Commission to Review the Working of the Constitution constituted by the NDA Government led by Shri Atal Behari Vajpayee recommended a National Judicial Appointments Commission with five members. Parliament has now made it a six member Commission consisting of the Chief Justice of India, two senior most Judges, the Law Minister and three eminent persons, one of whom shall be a member of a Scheduled Caste, Scheduled Tribe, Backward Class, minority or a woman. The words "eminent persons" are vague and do not reflect the ability to select suitable candidates for higher judiciary. Another and more serious flaw in NJAC is that any two members of the Commission can veto the decision of the majority of members which would result in stalling appointments on the one hand and opening the door for bargaining by the Executive with the Judiciary on the other which would not at all be conducive to the maintenance of independence of judiciary which needs to be strengthened and not diluted any further.

There has been very little presentation of the fundamental concepts including the 'Basic Structure in NJAC Hearing: Senior Advocate and Politician Salman Khurshid

Live Law:  With the Centre indicating in no uncertain terms that even in the eventuality of the Act being struck down, the collegium would not be revived and that a new law would be passed in Parliament, do you think we are headed for a constitutional showdown between the Executive and the Judiciary? Is the Government precipitating a constitutional crisis? Or is it right and justified in asserting that the Parliament can pass a fresh legislation if the NJAC is struck down by SC?

Salman Khurshid: Sadly the arguments before the Supreme Court are only about how the different systems have worked or not worked. There has been very little presentation of the fundamental concepts including the 'Basic Structure'. We shall wait and see how the debate fares once the Constitution Bench pronounces its judgment.

Live Law:  Sir, assuming the Supreme Court upholds the validity of the NJAC, then what would be the role of the Union Law Minister in the new system?

Mr. Khurshid: Assuming that the Supreme Court upholds the NJAC, a huge responsibility will lie upon the Minister of Law and Justice to provide new paramount for a quality, meaningful dialogue on relationship between the Executive and the Judiciary through the persona of the Minister of Law and Justice. He would indeed be quite active in dealing about convergence on the policy of appointments and indeed on the application of policy with great specification.

Read the NJAC Act

Read the Petition here.

Read Written Submissions here.