New Delhi: The Supreme Court on Friday said it was testing the constitutional validity of the National Judicial Appointments Commission (NJAC) and not trying to determine whether MPs have any knowledge about the new legislation on judges' appointment.
A bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Goel commented, “It was pointed out no Member of Parliament understands what NJAC is all about. The fact that NJAC was passed unanimously by both Houses of Parliament shows they all were in agreement. We cannot interfere in this.”
The apex court's remark came after senior advocate Rajeev Dhawan said, “The collegium system was working perfectly. Appointment of judges is not a thing to be played in the hands of the Parliament. What is the basis of making this change?"
Attorney General Mukul Rohtagi countered the submission and said it was a "dangerous" proposition to say that MPs don't understand NJAC.
The court added that the new law on appointment of judges should not be seen as "good or bad" and rather tested on the proposition that whether it conforms to the basic structure of the Constitution or not.
"Don't put the new law to good or bad. If it meets the parameters of the basic structure, work it out," a five-judge Constitution Bench headed by Justice J S Khehar observed during arguments on the constitutional validity of the National Judicial Appointments Commission Act (NJAC).
The observation came when Dhawan opposed Centre's submission that NJAC had an element of "hit and trial" and it will have to be seen how the new system works.
"The 99th amendment is a thoughtless piece. Constitutional amendments are not made for trial. It is too serious an issue and cannot be left to hit and trial. It cannot be put on experimental basis. We cannot experiment with the Constitution," Dhawan said opposing the NJAC Act.
Contending that the independence of judiciary is inextricably linked with the appointment process, he said the independence of judiciary cannot be maintained when the power to appoint judges rests with the executive.
"Why are we eager that there must be a reform? Everything is not vulnerable to change. What is the compulsion for the change? I agree, at the maximum, there might be a body to look into the performance of the judges. But, not beyond this.”
Solicitor General Ranjit Kumar also told the court that since 1993, the government had expressed its reservations on 30 names recommended by the collegium for appointment as high courts and apex court judges, but only in nine cases, the views were accepted and the recommended names dropped.
In 21 cases, the apex court collegium overlooked the government's reservations and reiterated its recommendations, resulting in the appointment of judges even against the wishes of the government.
In April, the government had notified the NJAC Act, 2014 and the Constitution (Ninety-ninth Amendment) Act, 2014 for bringing in a change in the existing system for appointment of judges in Supreme Court and high courts.
The acts provide for a transparent and broad-based process of selection of judges of the Supreme Court and High Courts by the NJAC.
A Constitution Bench comprising five SC judges is hearing all the petitions on the constitutionality of the NJAC and amendment that allowed NJAC to become a law.
