Supreme Court poser to Centre: Why does NJAC include law minister?

The bench made these observations 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.

Written by Utkarsh Anand | New Delhi | Updated: July 16, 2015 7:02 am
Supreme Court, NJAC, Collegium system, Narendra Modi government, Mukul Rohatgi, supreme court judges,  Njac news, SC NJac, Appointment of judges, Judges appointment, bjp government, nda government, india news, nation news 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.

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.

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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.

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  1. A
    Ashish Tripathi
    Jul 17, 2015 at 9:23 pm
    "Independence of the judiciary" means judicial independence when deciding cases, not appointment independence. The administrative act of appointing a judge and the judicial act of deciding a case are different. "Independence of the judiciary" refers to independence in judicial acts of judges, not administrative acts such as appointing judges. Appointment of judges by an appointer judge is not a factor that affects the judicial acts of the appointer judge. The administrative procedure for appointment of judges is not a basic structure of the Consution because altering the appointment procedure of a judge does NOT influence the judicial decision making independence of judges after their appointment: judges continue to have judicial independence when deciding cases. If a judge is corrupt and influenced, the procedure for impeachment is specified in the Consution as before. BOTTOM LINE: Appointment procedure is NOT part of the basic structure. Parliament can amend the appointment procedure of judges in the Consution. Article 124A is consutionally valid.
    Reply
  2. A
    Ashish Tripathi
    Jul 17, 2015 at 6:15 am
    "Supremacy of CJI" is not mentioned anywhere in the Consution, let alone in the basic structure of the Consution. The judgement of Shamsher Singh, in which "Supremacy of CJI" was inferred by the judges, is based on the premise of the old version article 124 of the Consution. But article 124 has since been amended to 124A and no longer permits such an "inferred supremacy of the CJI," instead it makes NJAC the supreme authority. This does not violate the Basic Structure of the Consution laid out in the first four parts--chiefly, fundamental rights.
    Reply
  3. A
    Ashish Tripathi
    Jul 17, 2015 at 6:11 am
    Appointment of judges by judges is an administrative act; it is not a judicial act. A judge does NOT have a fundamental right to perform administrative acts. A judge needs to be independent in his judicial acts subject to control by higher judiciary, and does not have a fundamental right to perform administrative acts. A Judge's primary job is to decide cases, not to appoint judges. Administrative job such as appointing judges is a secondary, non-fundamental job for judges. In summary, Judiciary does NOT have a fundamental basic right to appoint judges. Purported primacy of judiciary in appointment of judges is NOT a basic structure of the Consution. Independence of judiciary does NOT include right to perform the administrative act of selecting judges. Appointment of judges by judiciary is not a part of fundamental rights structure of the Consution. The Parliament has clearly spoken on who should appoint judges. NJAC does not violate the basic structure of the Consution. PEION CHALLENGING NJAC is untenable and SHOULD BE DISMISSED.
    Reply
  4. A
    Ashish Tripathi
    Jul 17, 2015 at 6:14 am
    Appointment of judges by judges is an administrative act; it is not a judicial act. A judge does NOT have a fundamental right to perform administrative acts. A judge needs to be independent in his judicial acts subject to control by higher judiciary, and does not have a fundamental right to perform administrative acts. A Judge's primary job is to decide cases, not to appoint judges. Administrative job such as appointing judges is a secondary, non-fundamental job for judges. In summary, Judiciary does NOT have a fundamental basic right to appoint judges. Purported primacy of judiciary in appointment of judges is NOT a basic structure of the Consution. Independence of judiciary does NOT include right to perform the administrative act of selecting judges. Appointment of judges by judiciary is not a part of fundamental rights structure of the Consution. The Parliament has clearly spoken on who should appoint judges. NJAC does not violate the basic structure of the Consution. PEION CHALLENGING NJAC is untenable and SHOULD BE DISMISSED.
    Reply
  5. A
    Ashish Tripathi
    Jul 17, 2015 at 6:10 am
    Of course the NJAC can challenge the executive. There are 3 judges, 1 executive, and 2 lay responsible "eminent" citizens on the NJAC panel. Any two out of three of these judges can veto the executive person's appointee. Like wise, the two lay eminent persons can veto a nepotist judge's appointee. The power of both the sides, judiciary and executive, is perfectly balanced in the NJAC to ensure checks and balances from all angles: no corrupt executive and no corrupt judiciary.
    Reply
  6. A
    Ashish Tripathi
    Jul 17, 2015 at 6:14 am
    Supreme Court judges have become extremely stupid in recent years due to the Collegium system. Now they feel threatened that their stupidity will be exposed. For proof, just look at the comments being made by the five judges in the panel hearing the NJAC case. The judges come across as extremely scared and threatened by the meritocracy and good governance system of NJAC. And it is no wonder: these judges are themselves a by product of the nepotist collegium era. A lot of incompetents are presently in the SC and they are scared of NJAC.
    Reply
  7. A
    Ashish Tripathi
    Jul 17, 2015 at 6:15 am
    The "Basic Structure" of the Consution is present only in the first four (4) parts: part I: Union and Territory, part II: Citizenship, part III: Fundamental Rights, part IV: Directive principles of State Policy. All the other parts of the Consution are non-basic structural and procedural provisions.
    Reply
  8. G
    Gopal
    Jul 16, 2015 at 9:44 am
    The circus continues. All over the world, the judicial appointments are made by executive and in some cases approved by legislature. This is part of the normal checks and balances. But our courts continue to resist a consutional amendment approved by both houses overwhelmingly and 10 state legislatures. And here we have judges defending a collegium system that can't be found in the consution. The elitism and the hubris reflected is bewildering.
    Reply
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