The Supreme Court on Monday sought the Centre’s clarification on the President’s power to seek reconsideration of recommendations made by the National Judicial Appointments Commission (NJAC). Hearing arguments of Attorney General Mukul Rohatgi on whether NJAC violates independence of judiciary in matters of judicial appointments, the five-judge bench headed by Justice JS Khehar wished to know if the President will seek reconsideration on his own discretion or on the aid and advice of the Council of Ministers.
The question assumes significance in the current fight between the Government and judiciary where the Centre has presented NJAC as the panacea to cure all ills prevailing in collegium system. This has been opposed by a set of PIls which believe that NJAC intrudes into judicial independence, and in particular the primacy of Chief Justice of India, whose decision in NJAC can be overturned by any two members in the Commission (also comprising two senior Supreme Court judges, law Minister, and two eminent persons) giving a negative vote.
The bench, which is sitting during the vacation to conclude arguments on the contentious law that seeks to overturn the existing system of judges-appointing-judges, told AG to come prepared on this aspect when the arguments resume on Tuesday. The bench shared its concern after reading Section 7 of the NJAC Act, proviso to which lays down power with President to seek reconsideration on any judge’s name forwarded by NJAC. “let us be clear if President represents Council of Ministers… If proviso extends to everything done by Council of Ministers then it’s a Cabinet appointment.”
Rohatgi said that the President or Governor is the ceremonial head in matters of judicial appointments provided under Article 124 and 217. He said that the Constitution clearly defines where the President can act in his discretion such as in Article 74 (during formation of Government). In the NJAC law, Rohatgi submitted that President functions in aid and advice of the Council of Ministers. He further added that by the new law, executive’s authority gets diluted as except for law Minister, nobody represents Government in NJAC. Moreover, judiciary with CJI and two judges still retain a majority to reject within NJAC.
He further urged the Court to shed its fears that persons acting in NJAC will be at cross-purpose. Rohatgi assured the Court that the NJAC enacted by the Parliament represented the collective will of the people borne from the perception that judicial appointments need to be transparent, objective and more representative.
He read out debate in Parliament and comments by former Supreme Court judges who criticized the collegium’s functioning since its creation in 1993 through a Supreme Court verdict. Realizing that the verdict was a response to executive’s excesses on judiciary following period of Emergency, Rohatgi said, “The 1993 verdict was coloured by expediency of times and should have been changed by court itself as things are now back in equilibrium.”