The presence of two eminent persons on the new body to appoint judges is proving a major irritant in deciding the validity of the National Judicial Appointment Commission Act (NJAC), under challenges before the Supreme Court. A five-judge Bench of the SC on Wednesday, hearing the challenge to the newly-enacted law felt that receiving inputs from eminent persons was understandable. But the NJAC has given them a “determinative power” to select or reject a judge candidate.
Speaking for the Bench, Justice JS Khehar said, “We can understand that somebody is an eminent person in English literature who can give inputs on whether a person to be selected as judge can write good judgments. That is okay. But to give him a determinative power of selection is quite another thing.” Moreover, the provisions of the NJAC law do not specify the qualifications for such eminent persons. Pointing to the hazards in the law, senior advocate Arvind Datar who appeared for the Madras Service Bar Association argued that most Acts surveyed by him show that an eminent person is defined and his qualification has link to the law in question.
When there is a practice of defining who an eminent person is, Datar alleged it was “deliberately left vague” in the NJAC law. He referred to amended Article 124B(c) which states that the NJAC has to ensure the person recommended is of “ability and integrity”. The Bench also comprising Justices J Chelameswar, Madan lokur, Kurien Joseph, and Adarsh Goel said, “Even with the best of names possible in the country, how can an eminent person decide on the ability and integrity of a judge.”
The Bench further noted, “The eminent persons will have a fixed tenure of three years which other members may or may not have.” The presence of the law Minister as a permanent member of the NJAC panel was opposed by senior lawyer Ram Jethmalani, who said, “The company of a politician with CJI vitiates independence of judiciary, and a politician serves the interest of his constituency, party and Government and has no stake in independence of judiciary.”
