NJAC hearing postponed to July 7

The controversy over Justice Cyriac Joseph regarding his alleged below-par performance dominated proceedings in the NJAC case in the Supreme Court today with the Union Government challenging the data on the number of judgments delivered by the former judge during his tenure.

"My impression was correct. The information is incorrect. The information provided by the registrars of different High Courts to the apex court registry on the judgments delivered by the judge cannot be relied upon," Attorney General Mukul Rohatgi submitted before a five-judge constitution bench of the SC headed by Justice J S Khehar.

The Bench, which is examining the constitutional validity of the new law replacing the two-decade-old collegium system of appointment of judges, had yesterday asked the Attorney General to verify the information received by the apex court registry from different high courts about Justice Cyriac Joseph, who retired as the judge of the Supreme Court on January 27, 2012.

Rohatgi said as a judge of the Supreme Court Justice Cyriac Joseph had signed 309 judgments of which he had authored seven while two were concurrent verdicts during his tenure of three years, six months and 20 days.

The judge was part of the bench whose other judges were "prolific writers", the law officer said.

The bench intervened and said that senior judges like to author judgments and Justice Joseph did not have a long tenure in the apex court.  He headed the bench only for a short duration, it said.

However, Rohatgi further elaborated that Justice Joseph was the Chief Justice of the Uttarakhand High Court from March 20, 2005 to July 6, 2008 and had delivered 162 judgments, out of which "85 judgments and orders" were completed in four to five paragraphs.

"Really speaking only 2 out of those 85 can be called judgments and even those were authored by other judges," the Attorney General submitted before the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel.

Rohatgi placed before the bench the copies of the "85 judgments" which were in "91 pages".  "Majority of them even cannot be described as judgments or orders" as those were passed in many of the infructous matters, he contended.

The Attorney General said he was actively practising in the Delhi High Court when Justice Joseph was a judge and had argued before him. He did not deliver the judgments in over 100 of matters in which verdicts were reserved by him, the AG claimed.

He got support from opposite counsel Anil Divan, who said even the matter in which he had argued before the Justice Joseph, the judgment was not delivered.

Rohatgi said the issue of delivery of judgments by Justice Joseph, now acting chairman of NHRC, can be verified with Justice Lokur, who was also the judge in the Delhi High Court at that particular time.

His statement evoked laughter from the bench and advocates in the courtroom with Justice Khehar saying that "now you are making him (Justice Lokur) a party. This is a conflict of interest".

The Attorney General referred to a news report stating that Justice Joseph has written a detailed letter to the members of the five-judge bench hearing the NJAC matter complaining about him. The judges denied receiving any such letter from Justice Joseph.

"We have not received any such letter. May be it is in transit," Justice Khehar said in a lighter vein.

Senior advocate Fali S Nariman, who argued against the National Judicial Appointments Commission (NJAC) on behalf of Supreme Court Advocates-on-Record Association (SCAORA), today wrapped up his rejoinder arguments.

Anil Divan, appearing for the Bar Association of India (BAI), told the bench that an impression has been given that various "bars are supporting the NJAC" and this is not correct.

He echoed the views of Nariman that all governments in the world want control over the judiciary and said that earlier the executive "by and large" used to accept views of the Chief Justice of India (CJI) in matters relating to appointment of judges.

Divan said that now the situation in courts has changed as government has become the major litigant.

"If you are the largest litigant then can you be allowed to have a say in the selection of judges," he said.

The counsel for BAI opposed the plea of the Centre that nowhere in the world, the collegium system of judges appointing judges was working.

"Nowhere in the world, you have the Keshavanand Bharti (judgment which postulated the doctrine of basic structures)," Divan said.

He said that India is vast with diversities and hence the independence of judiciary should not allowed to be undermined.

Divan alleged that it would be the government and its agencies which would be preparing "dossier" about the persons to be considered for appointment in higher judiciary by NJAC.

"Why are you (Divan) thinking that they (Government) will keep something and give something?," the bench asked adding, "If you remove the government from the NJAC then who will get you intelligence inputs on prospective judges."

There will be some kind of "selectivity" on the part of government agencies, Divan said.

The governments do not have any control over the Registries of the Supreme Court and the High Courts as they work under the CJI and CJs of the High Courts respectively, he said.

"Unless there is an independent system for collecting data and preparing the data base. It (NJAC) would de dysfunctional," he said.

The United Kingdom expressly bars all executive secretaries from being member of the panel, meant for selecting judges, he said.

"The only agency that provides information is the executive," the bench said.
On the issue of two eminent persons who will be part of the six-member NJAC, the bench  asked, "how these eminent persons will collect information about the persons to be considered for appointment?"

During the day-long hearing, the bench asked Divan to apprise it of the appointment procedures for judges in Australia and New Zealand after referring to a Supreme Court judgment in which it was discussed that these two countries were then contemplating changes in the prevailing systems.

The counsel for the BAI also said that there has been financial autonomy to the judiciary as issues like salaries, pensions and expenditures of judges are dependent on the consolidated funds.

He also referred to the 'veto' power given to the members of the NJAC and apprehended that it may result in a "deadlock" at times.

The bench then posted the matter for hearing on July 7 on the request of counsel for both sides.

Senior advocate Ram Jethmalani, who is opposing the NJAC Act, will advance his arguments on July 7.