The Supreme Court, hearing the validity of the NJAC law, asked the Centre on Tuesday whether it was equipped to handle possible “stalemate” situations resulting due to lack of consensus or any member’s refusal to accept regulations or be part in the selection process. The question assumed significance considering the fact that the National Judicial Appointments Commission (NJAC) has come to a standstill after the Chief Justice of India opted out of it citing the challenge against the new law being heard by a five-judge Constitution Bench.
Understanding the workability of the Act, the Bench headed by Justice JS Khehar asked Attorney General Mukul Rohatgi, “If you see any one of the provisions (of NJAC Act), if anybody (member) says I don’t agree, will it (Commission) come to a standstill, be it with regard to regulation or participation of members.” The Bench, also comprising Justices J Chelameswar, Madan lokur, Kurien Joseph and Adarsh Goel, asked Rohatgi to address these questions.
Rohatgi asked the Bench, “Why are you assuming they will object.” He pointed out that the provision of veto by which two members can upset a decision is based entirely on mutual trust. Further, he said, “The Regulations and proceedings will be subject to RTI. Public will know why a person is selected or not selected. In collegium you cannot know it.” The bench asked the AG not to brush aside its concern. It cited the practice under the existing system where Centre did not agree with any proposal sent by collegiums, it used to return the same for reconsideration.
Senior lawyer Fali Nariman, who represented the lead petitioner — Supreme Court Advocates on Record Association — told the bench that in case of difference of opinion, the Constitutional Amendment provided no way out. In the NJAC, judiciary loses majority voice and addition of three outsiders infringed independence of judiciary, an essential facet of Constitution’s basic structure, he submitted. The bench will continue hearing on Wednesday.