After nearly six weeks of intense arguments put forward by top legal brains backing or opposing the National Judicial Appointment Commission (NJAC), the Supreme Court on Wednesday reserved its judgement on whether the NJAC will replace the existing collegiums system of appointment of judges.
The SC differed with the Centre on the provision of nominating two eminent persons in the NJAC. “If you are talking of bringing layman into the NJAC, bring them here also (Supreme Court). Why are lawyers and judges sitting here. It’s not right, it cannot work,” a five-judge Bench headed by Justice JS Khehar said.
Defending the provision for inclusion of two eminent persons, Attorney General Mukul Rohtagi said on the concluding day of hearing, “If we can have laymen in Consumer Commission and Tribunals, then why not in the six-member NJAC.”
However, Rohatgi told the court that the past experience of bringing in eminent persons in quasi-judicial forums and tribunals has not been a good experience as they usually follow the practice adopted by judicial members with whom they hold sitting.
At the same time, the AG batted for the presence of two eminent persons on the NJAC panel to bring in transparency, independent thought, and public confidence in judicial appointments. He argued that there was nothing in the NJAC to suggest that addition of two members will violate the independence of judiciary or the basic structure of Constitution.
“Wisdom does not lie only in one section of society,” said Rohatgi responding to the court’s query on what eminent persons will contribute to the decision regarding judicial appointments.
“We are struggling with this anathema that lay people cannot decide on judicial appointments,” he added.
Citing the British model where a Committee of lay persons appoint their judges, Rohatgi submitted that changing times forced the Parliament to adopt a new model which can afford equal participation of judiciary, executive and civil society in appointing judges. Rohatgi gave examples of Arbitration panels, Consumer Commissions, National Green Tribunal and such other quasi-judicial panels where eminent persons help decide cases along with retired judges.
The Bench of Justices JS Khehar, J Chelameswar, Madan lokur, Kurian Joseph and Adarsh Goel also wanted to know if the inputs of these eminent persons can be available even without their physical participation.
The A-G, however, expressed apprehension that there was a danger that such eminent persons with time may become like judges deciding matters technically. “We have not achieved the purpose of having lay people in the tribunals. Experience suggests they follow the judicial member sitting on the Bench,” said Rohatgi. This has led to forums like Consumer Commission and Arbitration panels becoming very much like courts.
Senior advocate Fali Nariman, who represents the lead petitioner in the case - Supreme Court Advocates on Record Association - said what is lacking in is the spirit of argument. Rohatgi agreed with this point as lawyers have replaced litigants thus making arguments technical and this had forced even eminent members on such panels to focus on the technical aspects of the law.
Appearing for the Bar Association of India, senior advocate Anil Divan cautioned the bench that any tinkering with the NJAC panel as existing would not be permissible and if the Court came to a conclusion that eminent persons had to go, the whole NJAC Act needed to be struck down.