Questioning the inclusion of the Union Law Minister in the National Judicial Appointments Commission (NJAC), the Supreme Court on Wednesday wondered why the government was pressing for the executive’s intervention in appointments of judges, contrary to trends across the world.
“Can you cite any instance where executive’s participation is increasing and judicial participation is decreasing? Is it happening anywhere in the world? It is the other way round across the world but here we are taking a different route,” the Constitution Bench, led by Justice J S Khehar, told Attorney General Mukul Rohatgi.
The bench made these observations as Rohatgi sought to justify inclusion of the Law Minister as one of the six members of the NJAC, which replaces the collegium system of appointing judges to higher judiciary.
Rohatgi told the bench that participation of executive in judges’ appointment was envisaged within the scheme of the new model and contested the observation that judicial participation was increasing in other countries.
The bench, however, said it was a fact that judicial participation was on the rise in such processes. “You don’t require personal presence of the Law Minister only for giving inputs. What do you have to say about NJAC minus the Law Minister, with the presence of two eminent persons?”
Rohatgi asserted on the inclusion of the Law Minister, arguing that inputs without qualitative information will not serve any purpose and it was wrong in perceiving that the minister will be an “evil” acting always against judges.
“Wisdom does not lie in only one section or in one capsule. All these people who are non-judges (Law Minister and two eminent persons) will bring something valuable to the table. I understand there will be a sense of discomfiture but judges will need to get over it. Other countries have done it but we are struggling since we think it is an anathema,” Rohatgi said.
The bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel, sought to know from the government why the NJAC Act did not prescribe for adequate representation for women, SC/STs and North-Eastern region if this was one of the purposes for bringing the new model.
“Should it be left to the charity of the body? Why leave it to the superior wisdom of the Commission?” it asked. Rohatgi responded that the NJAC comprises eminent people and their wisdom could be trusted for ensuring adequate representation of all classes. The bench reserved its verdict on a clutch of petitions challenging the validity of the constitutional amendment and the NJAC.