The Supreme Court said Tuesday that letting the National Judicial Appointments Commission (NJAC) take off on a “leave-it-to-God” basis may lead to “disastrous” consequences even as the government admitted that it had only in a “very few” cases objected to the Collegium’s recommendations for appointing judges.
In around five of every 100 cases, the government had objected to the appointment of judges whose names had been recommended by the Collegium since 1993.
Besides, there has been only one instance in the last 22 years when the government resisted but the Collegium “insisted” and sent back the name for confirmation, Attorney General Mukul Rohatgi told a Constitution Bench led by Justice J S Khehar. He, however, did not mention the name, nor did the court ask for it.
Meanwhile, the Bench clarified it “cannot leave it to God” to vet the impact of the NJAC which replaces the Collegium. “It cannot be hit and trial business..leave it to (the) God business. The consequences can be disastrous and grave. System can be beyond repair,” it said, as Rohatgi argued that the NJAC be allowed to function before its efficacy is judged.
Underlining Rohatgi’s argument that an important objective of the NJAC was to stop “bad appointments”, the Bench called for instances where the executive tried to stop appointments but the Collegium nudged.
“I would say very few… around 5 out of 100,” replied the AG, adding there was one case where the government as well as the President objected but the name was reiterated and the person was appointed as a judge.
The Bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel, then questioned what prevented the government from “putting the foot down” if appointments being sought by the Collegium were not proper.
Rohatgi gave two reasons: first, the executive’s power was no match to the judiciary’ authority of the subject, and second, how could there be a debate when the judges felt they knew best about who should be appointed.
“Can I have a debate if there is no strong material? And then qualitative levels of power are different. Why should I (government) bother when I know I don’t have equal powers nor real knowledge about the proposed appointments. It was being done in a dark room with no sunlight and the only principle I can think of is ‘I scratch your back, you scratch mine’,” he said.
Unimpressed, the Bench said the government has a “constitutional obligation” to ensure people with integrity and competence are made judges and this responsibility could not be abdicated. It asked where was the occasion to accuse Collegium of its failings when there was no substantial material to stall an appointment.
Rohatgi argued that the NJAC plan did not have to be examined on merits but on whether it was within the contours of the Constitution and did not impact the independence of judiciary.
But the Bench said: “This is the problem. We cannot leave it to the God. Don’t call it a hit and trial business…say it is a good system”. It stated there had been cases where the Intelligence Bureau gave two different reports about the same individual whose name had been recommended by the Collegium.
Such an alarmist approach, Rohatgi replied, was not necessary in the matter since the NJAC comprised three seniormost judges, including the CJI, and the appointment process will be guided by their wisdom.
“It is not a case of a turf war. Parliament has considered NJAC to be a good system. Are we rocking the boat so much that it will drown? There is no fundamental right that only judges can appoint judges. Appointment is not an integral part of the independence of judiciary. It is an executive function,” he argued.
The arguments on a batch of petitions that have challenged the validity of the constitutional amendment and the NJAC will continue on Wednesday.
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