#NJAC Conundrum; Re-Cap of Arguments and Counter Arguments with Written Submissions

Senior Advocate Fali S. Nariman appearing for Supreme Court Advocates on Record AssociationDefending Judicial independence: Mr. Nariman had contended that the Constitution framers had stressed on insulating the superior judiciary the Supreme Court and high courts from legislative and executive control. He called the present collegium system as 'opaque' and added, "The framers of the Constitution had never intended to give the power of appointment of judges to the superior judiciary to the executive."He alleged that the NJAC Act was unconstitutional on two counts. One, the law was enacted by Parliament when the constitutional provisions were to the contrary and, two, the provisions of the NJAC Act attempted to encroach into judicial independence, thus violating the sacrosanct 'basic structure' principle, he said. He also maintained that NJAC was a danger to independence of judiciary as the new system allowed the executive to veto suggestions of the Chief Justice of India and two senior-most judges of the Supreme Court on appointment of judges.Mr. Nariman said judges' appointment was at the heart of judicial independence and no executive interference could be allowed in this matter. "National Judicial Appointments Commission is complete anathema to judicial independence as the proposal on judges' appointments given by the CJI and two senior-most judges of the Supreme Court could be rejected even by two eminent persons who could come together to veto it," he added.Mr. Nariman submitted that the Constitution provided that the President (read executive) would appoint judges to the Supreme Court and high courts in consultation with the CJI, but the then law minister A.K. Sen had told Parliament that the CJI knew who was best suited for a judge's post and his recommendations needed to be honoured."That was real judicial independence. The executive always honoured the CJI's recommendation despite the constitutional provision allowing it to appoint judges in consultation with the CJI. They gave primacy to the CJI's view on judges' appointment," he said.Copied a Congress Bill: Mr. Nariman had also accused the government of merely copying a Congress bill on the NJAC instead of using its own brains. "This government copied the Congress bill. If they had used their head, the material provisions (of the NJAC) would have been much better," he had said. Vesting the power of appointing judges on the executive is inappropriate and arbitrary; Mr. Nariman had told the Supreme Court bench.Legal merit, not political merit in appointment: On the inclusion of lay people in the appointments procedure, he said judges should be selected on legal merit and not political merit. It would be absurd to assume that a non-judicial person can decide on the suitability of a candidate for the post of a judge, Nariman argued, cautioning about the risk that such appointments may be based on considerations other than legal merit and ability.Basic structure of Indian Constitution: Mr. Nariman also refuted AG Mukul Rohatgi's claim that the manner in which judges are appointed to the higher judiciary was not a basic structure of the Constitution and that the NJAC did not violate the independence of judiciary. He argued that the process of appointments was the core of aspect of independence of judiciary. By substituting the system, the primacy of the CJI in initiating an appointment had been taken away.Mr. Nariman pointed out that even if three judges in the NJAC wanted to appoint an advocate as a judge, the power could no longer be exercised unless they secure an agreement from a fourth non-judge member in the NJAC. He said the Union law minister along with one or two eminent persons could always veto a recommendation made by the CJI and two other judges. This would show that the CJI's right to appoint a person had been taken away.No voting rights for eminent persons: He had further contended that the eminent persons to be nominated to the NJAC should not be given voting rights. "You consult the eminent persons. Make them consultees and do not give them voting rights," he said, adding that at best, they can be made part of the "decision-making process and not to the decision-taking process".Nariman though couched his support for the collegium system by stressing on the need to reform it to ensure that it does not remain a "closed shop" for the public and the media.Prosecution of Judges after retirements: He also urged the Apex Court to jettison a provision which currently prevents the prosecution of any judge after he has retired for any malfeasance during office. "This gives a very bad impression (to the public)…. How do you remedy the system? You have a few bad eggs. You have to put the fear of God and law in them," he said, urging the court to do away with this provision of law. "Can a judge be totally immune? Why remove this fear? If you are an honest and honorable judge would you bother?"Venkatachaliah model: The Supreme Court was...

#NJAC Conundrum; Re-Cap of Arguments and Counter Arguments with Written Submissions

M.A.Rashid and Apoorva Mandani

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