The Supreme Court on Tuesday indicated that the National Judicial Appointments Commission (NJAC) law under challenge could even be “read down” or “modified” or “altered” in its present form to bring certain provisions of the Act within the Constitutional scheme.Having reached the penultimate stage of hearing a batch of petitions terming the NJAC as unconstitutional, the five-judge Constitution Bench asked the petitioners to suggest which provisions in the NJAC could be read down, modified or altered in its present form. The Bench headed by Justice JS Khehar even sought suggestions from all parties appearing in the case to improve the collegium system, which the NJAC seeks to replace.Senior advocates Ram Jethmalani, Fali Nariman and Anil Divan are representing the petitioners among others and had argued that the NJAC violated the “basic structure” of the doctrine relating to independence of judiciary.
They batted for the primacy of Chief Justice of India in matters of judicial appointments as it exists in the collegium but felt that collegium appointments failed to be transparent. In the NJAC, they opposed the participation of law Minister as it amounted to executive interference and as regards two eminent persons, the criteria of their selection was not defined. This could prove dangerous as they would be an equal member in the NJAC as CJI or two senior judges of Supreme Court and can together oppose the recommendation of judicial members and defeat an appointment.Justice Khehar, speaking for the Bench, told Jethmalani, “In case we choose not to accept what you are saying, give us your suggestions on how certain provisions of NJAC Act can be read down to sustain NJAC.
Or in case we struck it down, would you like to make suggestions on the present system.”The Bench, also comprising Justices Madan B lokur, J Chelameswar, Kurian Joseph and Adarsh Goel asked all lawyers to conclude their arguments this week in order to reserve the case for final judgment. For the Government, Attorney General Mukul Rohatgi had submitted that the NJAC headed by the CJI would result in transparency and yield better appointments as views of executive, judiciary and experts will be available for each name discussed in the NJAC.The Centre has throughout taken a confrontationist approach by accusing the collegium appointments to be defective. Rohatgi even went to the extent of sharing names of judges cleared by collegium on whose appointment the Government had expressed serious reservations. Jethmalani termed the AG’s arguments as “appalling” and felt embarrassed by these developments.