Can an eminent SC/ST/OBC/minority person on the National Judicial Appointments Commission (NJAC) be expected to rise above narrow community interest while selecting judgesIJ Posing this question to the Centre, the Supreme Court on Friday raised doubts whether members selected on the criteria of caste, religion, or gender will serve the cause of independence of judiciary, the benchmark set by the apex court to decide the validity of the new law.
Hearing petitions challenging the new law on grounds of constitutional impropriety, the five-judge Constitution Bench led by Justice JS Khehar asked the Centre: “The question we want to know is that the appointment process relates to the entire country. These eminent persons (of which one has to be SC/ST/OBC/minority or a woman) must satisfy the width of knowledge, understanding of the Constitution, and the knowledge of working of judiciary.”
The concern became more pronounced after senior advocate Rajeev Dhavan termed it a “farce” to reserve an eminent person’s post in NJAC for the SC/ST/OBC/minority or a woman. Wondering if eminence could include even a former Minister or spiritual guru like Baba Ramdev who was recently offered Cabinet status by a State Government, Dhavan argued that this Act will make the most eminent SC/ST/OBC to rally against the most eminent minority candidate, who will be accountable to their own “constituencies”.
He said: “lay people appointed by a majority of politicos (PM and leader of Opposition along with CJI) affects purity of judicial appointments. Judiciary appoints judges under a trusteeship that cannot be shared with two random people chosen by a Committee where CJI is sandwiched between two politicians.” Besides, he argued that Article 15 is a clear bar on discrimination based on caste, religion or gender.
The Bench, also comprising Justices J Chelameswar, Madan lokur, Kurian Joseph and Adarsh Goel asked Dhavan: “The eminent person (so appointed) who has an interest to protect will go to any extent to compromise independence of judiciary …apart from protection of their constituency, there is even power of veto (by which any two out of the six-member NJAC can defeat a recommendation).”
Dhavan argued that Parliament is the custodian of laws but judges are custodians of the Constitution. In selecting judges, both the 1993 and 1998 judgements stressed on predominance of judiciary, as the criteria of choosing judges was to measure their actual performance. He wondered how expert members could decide suitability of High Court and Supreme Court judges. Even the Bench agreed, “Such a scrutiny may be possible at the entry point into subordinate judiciary.” And these appointments will be irreversible, not open to judicial review, he added.
While Dhavan will conclude arguments on Tuesday, the Bench sent out a tough warning against petitioners raising scandalous allegations against politicians in the pending proceedings. In one such petition by advocate Ml Sharma, the Bench found “irresponsible and scandalous” statements against politicians calling them corrupt and in-house criminals. The Bench sought to debar him from canvassing any PIl in Supreme Court in future and sought his response in this regard. The Bench said, “We cannot allow you to malign politicians, they are our representatives. You statement is an insult to Parliament and the country.”