Freedom key, NJAC can’t violate basic structure of Constitution: Supreme Court

The Supreme Court said today that the new National Judicial Appointments Commission (NJAC) must be tested for its ability to keep the independence of judiciary intact and its compliance with the basic structure of the Constitution.

A five-judge Constitution Bench, headed by Justice J S Khehar, said that the Court was not concerned about whether judges were a part of the NJAC or not or what authority the judges could exercise as members of the NJAC but was definitely inclined to examine the new law’s validity on the principles laid down by the top court in its previous judgements.

In the first acknowledgment on the requirements that the Constitutional amendment and the NJAC Act must fulfill, the Bench made it clear that “primacy” has to be given to the “independence of the system” and not to individual judges or to anyone else.

The Bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Jospeh and Adarsh K Goel, said that emotional arguments, such as the ‘temple of justice” requiring protection against undue influence by the executive, must give way to some “sound legal arguments” about the Constitutional tests the new law has to pass for getting the seal of its approval.

“It is ultimately the primacy of the independence of the system that we need to protect. Who is in it and who is not, or whether CJI has enough power or not, is not the real question for us. The complexion of the new body or its composition or its nomenclature are not important. The most important aspect is the independence of the judiciary,” said the Bench.

The Court added that it did not have to question the will of Parliament in framing the new law and that its task was to rather examine its validity on the Constitutional principles laid down by the Supreme Court to check the executive and its
authority.

“There was a system (collegium) and we think it was good. The government felt that it needed to be replaced with something else. It is the choice of the Parliament to make a system but that system has to be independent and compliant with the basic structure of the Constitution. The system is alright only if the government has done so. We then don’t care whether none of us in it or all of us in it,” said the Bench.

The Court’s stance has come a day after the government argued that the 1993 judgement, on which most of the opposing arguments were based and which established the “primacy” of the previous collegium system in appointing judges, was not valid in the case of NJAC.
The 1993 judgement, while according primacy to the CJI, relied extensively upon the doctrine of the basic structure of the Constitution and treated independence of judiciary as its essential component.

Despite there being no stay on its operation by the Bench, the NJAC has so far been a non-starter with Chief Justice of India H L Dattu informing Prime Minister Narendra Modi last week that he would not join the panel until the Supreme Court decided on the validity of the new system to appoint judges.

Meawhile, the collegium system, the Bench said, was not an instance of the court’s “power” but it was, in fact, a “pain” and a “responsibility” that was undertaken by the judges “in the interest of the country”.

It added: “It is not easy to say yes or no to an appointment. It is a collective voice of the institution and we have always taken it as a great responsibility”.

During the arguments on a clutch of petitions that have challenged the validity of the new law, the bench also sought to know from the government the criteria for selecting the two “eminent persons,” who would comprise the six-member NJAC. It wondered if the “eminent persons” would be able to assess the skills of a person who is to be appointed or promoted as a judge.

“Our experience tells us about people (being considered for appointments). Whether it is possible for you to suggest two names, who will be able to suggest the names of the judges? The question is whether you can name a person of eminence who can name judges,” the Bench asked Attorney General Mukul Rohatgi.

The AG responded that these seemed to be some “fixation with the judges appointing judges” and that the “eminent persons” would be very much capable of rendering valuable assistance in appointing judges.

“If the sole criteria is to assess the judgements delivered by a person then only judges will be able to appoint judges. But that is not so. There are several others things to be considered as well,” said Rohatgi. The arguments will continue Thursday.