Terming objections to the National Judicial Appointments Commission “alarmist,” the Centre on Tuesday told the Supreme Court that a judge’s job is to judge cases and not appoint brother judges.
Attorney-General of India Mukul Rohatgi, appearing for the Centre, told a Special Bench headed by Justice Anil R. Dave that “independence of judiciary” does not include sitting judges making judicial appointments.
“A judge’s job is to judge cases and not to appoint brother judges. Independence of judiciary does not mean appointment of other judges,” Mr. Rohatgi said.
Senior advocate Fali Nariman, appearing for the Supreme Court Advocates-on-Record Association challenging the law, recalled history to point out that the executive has always wanted judges “committed to the philosophy of the government.”
To this, Mr. Rohatgi said the NJAC was never a brainchild of this government. “Talk about National Judicial Commission has been on for a while,” he said. Further, Mr. Rohatgi said judges functioned independently in the first 40 years, before the collegium system came into existence.
“Emergency was only one aberration. It was the S.P. Gupta case which said one CJI is not enough and the collegium was formed. And then the collegium took upon itself the power to appoint judges, its decisions became final. It became like a veto ... all this was never countenanced by the Constitution,” the Attorney-General argued.
This was the first day of hearing on a batch of petitions challenging the constitutionality of the National Judicial Appointments Commission Act.
These petitions want the Constitution 99Amendment Act, 2014 declared “unconstitutional.”
The NJAC seeks to end the two-decade-old collegium system and restore the political class’ role in the appointment of judges.
Senior advocate Anil Divan, appearing for a petitioner, submitted that the NJAC in its present form “drowns” the voice of the judiciary.
He pointed out how the law allowed any two persons of the six-member Commission to veto a candidate recommended by the Chief Justice of India and two senior-most Supreme Court judges.
