NJAC judgment: 5 things Justice Jasti Chelameswar said in his dissent

Justice Chelameswar wrote a strongly-worded dissent against the collegium system that the SC judgment restored

On Friday, a Constitutional Bench of Supreme Court struck down the NDA government’s National Judicial Appointments Commission (NJAC) Act. However, one of the five-member bench, Justice Jasti Chelameswar, differed from the majority opinion and wrote a strongly-worded dissent against the collegium system that the judgment effectively restored.

Chelameswar was the lone judge in the Bench to uphold the validity of the NJAC, arguing that to entirely eliminate the government from the selection process was against the country’s democratic principles. Here are the top five things he said in his note:

1) "Transparency is a vital factor in constitutional governance....Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks."  

 

2) Assumption that "primacy of the judiciary" in the appointment of judges is a basic feature of Constitution "is empirically flawed." 

3) There were cases where the apex court collegium "retraced its steps" after rejecting recommendations of a particular name suggested by the High Court collegium giving scope for a great deal of "speculation". 

"There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.

4) "To hold that it (government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy," he said, adding Attorney General Mukul Rohatgi was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances - a fundamental principle in Constitutional theory.

5) "For all the above mentioned reasons, I would uphold the Amendment. However, in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the Act," the judge said.