BJP-ruled states today strongly supported in the Supreme Court the creation of the National Judicial Appointments Commission (NJAC) saying that the independence of judiciary does not necessarily require that judges be appointed by the collegium system.
Senior advocate T R Andhyarujina, appearing for Maharashtra, told a five-judge bench headed by Justice J S Khehar that the independence of judiciary does not necessarily require that the judges be appointed by the collegium system.
"In no country of the world, judges are appointed by collegium/judiciary. Instead it is done by the executive in consultation with judges", he told the bench which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.
Besides Maharashtra, the counsel for BJP-ruled states, Rajasthan, Chhattishgarh, Jharkhand and Gujarat, also advanced arguments in favour of the NJAC and enabling 99th Constitutional amendment.
At the outset, Andhyarujina said that the collegium system has "obvious problems", which were "lack of transparency" due to the "secretive method" of appointing judges, "lack of accountability" and "lack of diversity".
He said the basic question was whether there was a disruption of the basic structure of the Constitution and independence of judiciary by the NJAC.
The lawyer for Maharashtra said that "there is not a word" in the Constitution that the collegium system is a part of its basic structure or that it is the only method of appointing judges.
"The character of a judge and his independence does not follow from the method of his appointment and a judge is independent because of his oath and character," he said, adding that the independence of judiciary was not a result of the method of its appointment.
He also gave instances, like that of Justice V R Krishna Iyer, where judges decided cases without any "fear" or "favour".
"There is no basis that independence of judiciary can be secured only by appointment of judges by judges or by according primacy to their opinion," he further said.
The bench asked Andhyarujina whether there was a constitution in the world where the independence of judiciary is as "sacrosanct" as in India.
Independence of judiciary is there but the "method of appointment was not the prescription", he responded.
He also referred the Constituent assembly debates and quoted B R Ambedkar's views on the issue and said that the architect of the Constitution had termed handing over primacy to CJI, on appointment of judges, as a "dangerous proposition".
To this, the court said that Ambedkar was also against giving primacy to the President or the union government on the issue.
