With the collegium system under attack from the government, the Supreme Court Friday said that the new National Judicial Appointments Commission (NJAC) can also make mistakes in selection of judges and that the President had not been given better status under the nascent law.
A Constitution Bench headed by Justice J S Khehar observed that since the NJAC will also appoint judges on the basis of materials available with the members, they could also make mistakes.
“The point is not who selects the judges; a collegium or NJAC or some other body. Selection is to be made on the basis of available material in any system and hence anybody can make mistakes. One of the most important questions that will arise in any system would be who can judge the potential of the candidates better,” it said.
The bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel, further questioned the government over blaming the top court for taking away the President’s power to appoint judges by its judgments in the Second Judge’s Case. By this judgment in 1993, the Court had established collegium, with primacy to the Chief Justice of India, for appointing judges to the higher judiciary.
The Bench said that if collegium was to be criticised for allegedly curtailing the President’s power in appointing judges, the NJAC was no better. “The power of the President is completely circumscribed under the NJAC. The NJAC Act says he ‘shall’ accept the recommendations made by the Commission. So the President has to mandatorily accept such recommendations. But you keep arguing that collegium was bad since it circumscribed the President’s power,” it said.
Meanwhile, Solicitor General Ranjit Kumar argued that “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 was a high court chief justice who said that I had to abide with the master to appoint a judge in my high court since I had to come to the Supreme Court,” said Kumar.
The court also sought to know from the government whether it would be proper for the five-judge Bench to decide the constitutional amendment and the NJAC Act independently while the issues relating to the reconsideration of the Second Judge’s Case could be referred to a larger bench.
Attorney General Mukul Rohatgi said he would agree to this if the Bench passes an interim order stating the Court would not look at the nine-judge bench judgment in the Second Judge’s Case.
Refusing to do so, the Bench said that this could not be an embargo and that the Court would definitely look at the Second Judge’s Case.
“Then it must be referred to a larger bench. Why are you hesitating?” retorted the AG. The Bench replied it had no hesitation but it asked the question in academic interest.
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