New Delhi: BJP-ruled states on Tuesday strongly supported in the Supreme Court the creation of the National Judicial Appointments Commission (NJAC) saying that the independence of judiciary does not necessarily require that judges be appointed by the collegium system.
Senior advocate TR Andhyarujina, appearing for Maharashtra, told a five-judge bench headed by Justice JS Khehar that the independence of judiciary does not necessarily require that the judges be appointed by the collegium system.
"In no country of the world, judges are appointed by collegium/judiciary. Instead it is done by the executive in consultation with judges", he told the bench which also comprised justices J Chelameswar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel.
Besides Maharashtra, the counsel for BJP-ruled states, Rajasthan, Chhattishgarh, Jharkhand and Gujarat, also advanced arguments in favour of the NJAC and enabling 99th Constitutional amendment.
At the outset, Andhyarujinasaid that the collegium system has "obvious problems", which were "lack of transparency" due to the "secretive method" of appointing judges, "lack of accountability" and "lack of diversity".
He said the basic question was whether there was a disruption of the basic structure of the Constitution and independence of judiciary by the NJAC.
The lawyer for Maharashtra said that "there is not a word" in the Constitution that the collegium system is a part of its basic structure or that it is the only method of appointing judges.
"The character of a judge and his independence does not follow from the method of his appointment and a judge is independent because of his oath and character," he said, adding that the independence of judiciary was not a result of the method of its appointment.
He also gave instances, like that of Justice VR Krishna Iyer, where judges decided cases without any "fear" or "favour".
"There is no basis that independence of judiciary can be secured only by appointment of judges by judges or by according primacy to their opinion," he further said.
The bench asked Andhyarujina whether there was a constitution in the world where the independence of judiciary is as "sacrosanct" as in India.
Independence of judiciary is there but the "method of appointment was not the prescription", he responded. He also referred the Constituent assembly debates and quoted BR Ambedkar's views on the issue and said that the architect of the Constitution had termed handing over primacy to CJI, on appointment of judges, as a "dangerous proposition".
To this, the court said that Ambedkar was also against giving primacy to the President or the union government on the issue.
Attorney General Mukul Rohatgi in response clarified that the Constitution makers' intention was to have a mix of power instead of vesting it in any one of the three organs of the State - executive, legislature and judiciary.
Andhyarujina said that there was no accountability or transparency in collegium system as it functions in secret and its working is not open to public view. "In NJAC, there is total accountability and transparency," he said.
To this, the bench said the Parliament should have laid down a law that working of the collegium has to be open to the public.
Andhyarujina also said that under the NJAC diversity in appointments made to higher judiciary was possible, as this factor was missing presently as there were few judges who were women, SC/ST or belonging to some other minority group.
The state of Jharkhand said "there was no participation of the Supreme Court" in a judge's removal or impeachment, which does affect independence of judiciary, thus, it cannot have primacy in their appointment.
The bench, however, countered that the apex court is involved in the process as it carries out the enquiry to see whether a judge needs to be removed, after a complaint against him was received.
The Supreme Court Bar Association (SCBA), which has intervened in the matter, told the bench that if the petitions challenging the 99th amendment to the Constitution and the NJAC were allowed, it would amount to "whittling down" the power of Parliament to amend the Constitution.
The state of Chhattisgarh in its arguments said that while NJAC would provide a balance between the three organs, the judiciary was trying to exert primacy (by the collegium system).
The state of Jharkhand also said that in the NJAC, primacy of judiciary would be protected as of the six members of the commission, three would be senior judges of SC including the CJI, one would be the law minister and the other two "eminent persons" would be nominated by a panel of the prime minister, leader of the opposition and the CJI.
It said that while the judiciary may not have primacy in appointment, it would have primacy in blocking an "undeserving" candidate as only two members were required for that.
"So there is no question of an undeserving candidate being bought in. Therefore, primacy of judiciary is maintained under NJAC along with diversity," the counsel for Jharkhand said. Additional Solicitor General Tushar Mehta, appearing for Gujarat, said that the inclusion of two eminent persons in the NJAC is the will of the nation.
"The presence of two 'eminent persons' in the Commission reflects the unanimous will of the nation and it can never affect the independence of the judiciary. The provision is made to ensure that the appointing body is broad-based and there is a transparency and an accountability in the matter of judicial appointments," he said.
Senior advocate K Parasaran, appearing for Rajasthan, favoured the NJAC by calling it an "ideal mix" of judiciary, executive and the common public.
"Give it (NJAC) a try and see how it functions. It is better to do the trial and error than error and trial," he said, adding that in the new system merit will also be considered with seniority.
Senior advocate and SCBA President Dushyant Dave did not support the Centre's contention that the collegium system cannot be revived even if the court quashes NJAC Act.
At the fag end of the day, Dave started advancing arguments in favour of the NJAC and criticised the collegium system of judges appointing judges.
"I regret with all humility at my command that the majority judgement of the nine-judge bench in 1993 was singularly silent on the constituent assembly debates on the issue," Dave said.
Dave, however, did not support the Centre's contention that the collegium system cannot be revived if the court quashes the NJAC Act.
The plenary power of Parliament to amend law cannot be questioned, he said adding that the philosophy behind it was that present generation cannot bind the future generation. Dave will resume his arguments on Wednesday.
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