The new law replacing the collegium system of appointment of judges for higher judiciary came under severe criticism in the Supreme Court from noted jurist Ram Jethmalani who accused the NDA government of politicising and compromising judicial independence.He contended that the Constitutional Amendment Act carried out by the government to bring the new legislation was wholly “ultra vires” to the Constitution as there is a serious infringement of its “basic structure” and the presence of Union Law Minister in the National Judicial Appointment Commission (NJAC) would result in politicisation of the appointment of judges.
Senior Supreme Court lawyer Ram Jethmalani said the previous UPA government passed a Constitutional amendment which mentioned only one sentence providing for a NJAC and its contents was sought to be drawn by a Parliamentary law.
“Both government and Opposition were ad idem. But this (NDA) government has adopted a law that is more fraudulent,” he submitted before a five-judge bench headed by Justice J S Khehar, which is examining the constitutional validity of the National Judicial Appointment Commission (NJAC) Act, 2014.
Hitting out at the government over the controversial law, Jethmalani said “corrupt government requires corrupt judiciary and they encourage the appointment of corrupt judges”.
He said now primacy of the CJI’s view has been taken away under the NJAC and he has been made to share his constitutional position with five others including the Law Minister, two eminent persons and two senior-most judges of the apex court.
“Any constitutional amendment which diminishes or dilutes the primacy of the Chief Justice of India recognised by 1993 and 1998 judgement of this court is void as repugnant to the basic feature of the Constitution and also inconsistent with the nine judge bench (verdict in judges case),” he submitted.
“The Constitutional position today is that the executive will be entitled to and bound to consult the Chief Justice and the CJI’s view is binding on the President. This right has been taken away from him and he is made to share it with five others,” said Jethmalani, who as a Rajya Sabha MP had opposed the passage of the new law in Parliament.
Jethmalani further said the six-member NJAC talks about two eminent members in the panel but the Act is not clear as to who qualify to be called eminent persons and also politicians are not known these days for their integrity.
The issue of eminent persons in the panel came for deliberations repeatedly and before Jethmalani, another senior advocates also mentioned it.
“I analysed 70 laws of which 67 specify what an eminent person should be. In all these laws they have established nexus between the eminence required and the law. It is deliberately left vague,” he submitted which evoked a reaction from the bench.
“Let us assume eminent persons have a nexus to the law. We want to know if the best names possible in the country can decide whether they can decide this function to judge suitability of persons. How do they have ability to decide on this question? We can understand you take inputs from them but here they have a determining power,” the bench observed.
Jethmalani, who maintained that consultation is compulsory in appointment of judges, said that under the pre-amended Article 124 of the Constitution, executive was bound to consult the CJI on the appointment of judges and CJI’s views were binding on it.
He said President gets the advice from the judiciary and as such, the executive advice is by convention.
“Constitution does not, in express terms, provide for it. The executive cannot give advice much less binding advice which involves breach of the Constitution’s basic structure,” he submitted before the bench, also comprising justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.
Jethmalani said the CJI and the executive joining together can render the proceedings nugatory and no appointment desired by the judiciary can take place.
“His (CJI) power to appoint and fill up all vacancies can be just extinguished,” he said adding that the executive which had only the right and duty to participate in the consultation process has now a Constitutional power to rate and the law minister with his asset of vast patronage can get one vote on his side and render the judiciary impotent; with two more on his side can often not only create a deadlock but also appoint their own person.
Jethmalani said, “Judicial primacy, the view of the CJI overruling the executive suggestion is wholly repugnant to Article 50 of the Constitution.”
“Presence of Law Minister in the commission diminishes the confidence of the public or the citizens claiming protection against breach of fundamental rights or seeking relief against illegal unconstitutional or mala fide action of the executive.
“The continuous company of the CJI with the Law Minister in regular meetings often leading to social meetings and private talk, and gossip and sometimes on drinks disqualifies judges and vitiates the independence of judiciary,” he said.
He said it is a well-known feature of the pre-collegium case of 1993, candidates for judicial office cultivated politicians. Politicians are not known these days for integrity.
A statute, even a Constitutional Amendment Statute, has to be declared invalid of it is too vague and makes the task of its application or enforcement impossible or even difficult and the reference to two eminent persons in the provision is of this kind and hence, void, he said.
The eminent citizens must include a distinguished lawyer enjoying the confidence of the bar and bench, preferably an acknowledged jurist and the second a trained sociologist who understands the misery of the poor, the causes of poverty and legal reform connected with these grave problems of our polity, he said, adding that other lesser mortals are not needed and reference to castes and gender makes invalidity a certainty.
He said that high precedents in other countries that politicians particularly active ones must be excluded.
Appointment of superior judges is a sacred duty and any less sacred interest or reasonable suspicion of its existence should be strictly excluded, he said.
A law minister who has to retain power is more interested in securing votes, serving a limited constituency and doing or not doing things according to the exigencies of vote bank politics cannot participate in this wholly task, the lawyer said.