The inclusion of Law Minister as an "ex-officio member of NJAC" for selection and appointment of judges in higher judiciary came under sharp criticism by the Supreme Court today with the majority view saying that his presence "impinges upon" the principles of "independence of judiciary".
"I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex-officio Member of the NJAC.
"Clause (c) of Article 124A(1), in my view, impinges upon the principles of 'independence of the judiciary', as well as, 'separation of powers'," Justice J S Khehar, who headed the five-judges constitutional bench, said.
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Concurring with his view, Justice A K Goel observed that appointment of judges of the Supreme Court and appointment or transfer of judges of high courts, can certainly be influenced to a great extent by Law Minister and two nominated members of the six-member NJAC, which would affect the independence of judiciary.
"Appointment of judges of the Supreme Court and appointment/transfer of judges of the High Courts, can certainly be influenced to a great extent by the Law Minister and two nominated members, thereby affecting the independence of judiciary," he said.
"The plea that the Law Minister and the nominated members will provide feed back also does not provide any justification for their being members of the Commission and thereby participating in evaluation and suitability of a candidate for appointment as judge of the Supreme Court or High Courts and having power to overrule unanimous view of judges," he said.
