New Delhi: The Supreme Court Thursday said that the independence of judiciary was pivotal and for that things have to be done in the right and best way, no matter who are people involved in it.
"Do your best and do the right things... there can be situations where things going wrong. The answer is independence of judiciary, no matter who is on it or who is off it," said the constitution bench of Justice J.S.Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Goel.
Its reaction came as senior counsel Ram Jethmalani, appearing as intervener, told the court that through the National Judicial Appointments Commission (NJAC) mechanism, the government wanted to appoint judges like the four who had on April 28, 1976 had upheld the a person detained under preventive detention law during the Emergency had no right to challenge reason of his detention invoking jurisdiction of the high court to protect his fundamental right to liberty.
Jethamalani was referring to the majority judgment by then Chief Justice A.N. Ray, Justice M.H. Beg, Justice P.N. Bhagwati and Justice Y.V. Chandrachud by which they had held that after the promulgation of Emergency June 27, 1975, no person has any locus standi to move any writ petition under Article 226 before a high court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.
Justice H.R.Khanna differed with them and gave a dissenting judgment.
"Now they want to redo it," Jethmalasni told the court assailing the NJAC and saying that he still believed that with some transparency, there was nothing wrong with the collegium system of judicial appointments.
"I see no defect. No other defect. The system of appointment is not transparent," Jethmalani said, adding that the vacancies to be filled should be advertised and applications invited. Such a course will have the confidence of the people, he said.
Apparently not persuaded of Jethmalani's reasoning, the bench said: "It (collegium system) is not a closed door system but throw it open would have its repercussions. You can't say that the system is not transparent. It has limited transparency but enough to get the required information."
To dwell further into the issue, the bench asked Attorney General Mukul Rohatgi to provide it with the information about the number of names recommended by various high courts for appointment as judges declined by the apex court collegium, number of recommendations by the Supreme Court collegium not accepted by the government and the number of recommendations that were reiterated by the collegium after reconsideration.
The court is hearing challenge to the constitutional validity of the 99th constitutional amendment act and the National Judicial Appointment Commission Act, 2014 in a batch of petition including by the Supreme Court Advocate on Record Association, Bar Association of India, Service Bar Association of Madras High court, NGO CPIL and others.
Counsel Prashant Bhushan appearing for the NGO CPIL favoured setting up of a full-time broad-based body for making appointments to the constitutional courts in a transparent and rational manner. He said that any part time working would not succeed and eventually fall in the lap of the law ministry secretariat controlled by the law minister.
He said that all short-listed names should be put in public domain to elicit their views or objections before any final decision is taken.
Hearing will continue on Friday.
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