The Supreme Court Friday asked how the National Judicial Appointments Commission (NJAC) mechanism would make judicial functioning "meaningful" and in what way would its members be "accountable" and to whom.
A constitution bench of Justice J.S.Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Goel posed the questions in reference to the statement of objects and reasons given in the National Judicial Appointment Commission Act, 2014.
This reads: "The said commission would provide a meaningful role for the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process."
"What meaningful role there are talking about. How can they make participants accountable?" Justice Khehar asked senior counsel Rajeev Dhavan who had appeared as an intervener in the hearing of the challenge to the constitutional amendment act and enabling NJAC Act, 2014.
"We are asking you this to understand before we ask them (government)," he told Dhavan who pleaded ignorance, saying "I don't know... let them (government) answer this".
Besides these two twin questions, the court too had some misgiving on the possible profile of the two eminent persons who would be a part of the NJAC and would be selected by a committee comprising the prime minister, leader of opposition in the Lok Sabha and the chief justice of India.
This query came as Dhavan assailed the provision, asking how two politicians with the CJI "sandwiched" between them will decide on two laymen interfering in the judicial appointments.
"It is a question of purity and the standards to be maintained as far as judiciary is concerned. If purity is lost, then everything is gone," Dhavan told the court, questioning the knowledge, width and the understanding of these two NJAC panel members.
At this, Justice Goel said that one can understand their (eminent persons) role if the appointment is at the entry stage of judiciary at the subordinate level but in the case of higher judiciary, one should understand their actual performance as a judge or a lawyer.
Dhavan said that once they are appointed, they would be "nailed down" in NJAC for three years and there would no way of getting rid of them.
Describing the provision for the nomination of two eminent persons including one from reserved category, minorities and woman as a farce, he said it "must be struck down on the grounds of essentiality, width and identity" of the judiciary.
He told the court that the independence of judiciary and its preponderance could not be permitted to be diluted as it was the custodian of the constitution and balances the rights of the people which they have surrendered to the political executive under the constitution.
Assailing the contention that NJAC was brought in only after constitution's 99th amendment neutralised the apex court's 1993 judgment and 1998 opinion on presidential reference, Dhavan said that "any exercise of the constituent (assembly) power by the parliament to amend the constitution will be subject to the last word by the highest judiciary".
The apex court by its 1993 judgment put in place the collegium system insulating the judicial appointments from grazing by the political executive and by its 1998 opinion, reaffirmed it.
