SC against bringing NJAC under RTI; Fali S. Nariman says NJAC with Judges in majority and AG instead of Law Minister acceptable

The Constitution Bench of the Supreme Court expressed its qualms against bringing judicial appointments made by the National Judicial Appointments Commission under the Right to Information Act. The Bench comprises of Justices J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel.

The Bench 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?”

It was pointed out by the Court that due to vacillation that their views would become public, senior judges were now reluctant to write even the Annual Confidential Reports of subordinate judges. “Should everything that transpires in these (NJAC) proceedings be open? We also want to devise a mechanism where wrongs cannot be perpetuated but how can everything be known to the world at large? We think it can be transparent to a partial extent. The objective may be laudable, but we will have to protect both sides,” it added.

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 has urged the Solicitor General to produce before it, translated copies of the debates that took place in Assemblies before NJAC Act was passed.

Advocating for the NJAC, Senior Advocate Fali S. Nariman was asked by the Supreme Court to make suggestions on reading down the NJAC provisions and also corrective measures to improve functioning of the collegium system. Mr. Nariman then told the Court that he would agree for a judge-majority five-member NJAC which has the attorney general as a member instead of the law minister.

The Bench however pointed out that inclusion of the AG would put him as well as the Judges in an awkward position as the AG would later have to argue before the same Judges.

Mr. Nariman however remained firm and stated that both the AG and the judges were constitutional post holders and were aware of the responsibilities that came with the post. On the other hand, the law minister represented the political executive and his presence in the body tasked to select judges could create prejudice in the minds of litigants and, importantly, could be construed as the executive's interference in judicial independence, Nariman said.

Justice M.N. Venkatachaliah-headed Committee for Review of Working of the Constitution had earlier suggested a five-member commission comprising the Chief Justice of India, two senior-most judges of the Supreme Court, the law minister and an eminent person from the field of law.

Last Month, Mr. Nariman scathingly 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,” Nariman said arguing against the NJAC on behalf of the SC Advocates on Record Association (SCAORA), before a five-judge bench. You may read the written submissions and LiveLaw story here.