In terming the NJAC unconstitutional, the Supreme Court found an alibi in the high profile scams in the country where the executive’s highest functionaries — including ex-Prime Ministers, Cabinet Ministers and State Chief Ministers — are forced to approach courts for relief. In such a situation, the Bench has argued that independence of judiciary would be under threat if the Union law Minister, considered a representative of the political executive, is given a say to choose High Court and Supreme Court judges.
This aspect weighed with the courts while examining the presence of law Minister on now scrapped six-member NJAC panel comprising CJI, two senior Supreme Court judges, two eminent persons, besides law Minister.
Cases arising from tax statutes and criminal cases are not the only instances where executive is faced against the judiciary, commented Justice JS Khehar, who supported the 4:1 majority view to hold NJAC unconstitutional. “Also in high profile scams, which are no longer a rarity, the executive has an indispensable role.”
In an indication to the recent scams like 2G, Coal Allocation, Mining and Sarada chit fund scams, Justice Khehar observed, “In these matters, sometimes accusations are leveled against former and incumbent Prime Ministers and Ministers of the Union Cabinet, and sometimes against former and incumbent Chief Ministers and Ministers of the State Cabinets.”
Contrasting the role of judges as against the executive in such matters, Justice Khehar noted, “Judges are not on one or the other side of the adjudicatory process. The political-executive in contrast, in an overwhelming majority of cases, has a participatory role. In that sense, there would/could be an impact or effect of a decision rendered one way or the other… The plea of conflict of interest would be available against the executive, if it has a participatory role in the final selection and appointment of judges, who are then to sit in judgement over matters, wherever the executive is an essential and mandatory party.”
The judge sought to rely on literature relating to the principle of reciprocity to suggest that deep inside human psyche, there is a feeling of “reciprocity” or “pay back” which in the Indian context runs deeper as an act of not reciprocating towards a benefactor is considered an “act of grave moral deprivation”. In its judgement, the Court said, “When the favour extended is as important as the position of judgeship in the higher judiciary, one would best leave it to individual imagination, to determine the enormity of the reciprocal gratitude and loyalty.”