In a sharp criticism of the highest judiciary, the Centre on Tuesday said that judicial appointments over the years have been “bogged down” by the seniority aspect and merit has found no place.
The criticism of the mode of judicial appointments came during a hearing on the validity of the National Judicial Appointments Commission law before a Constitution Bench.
“We have been so bogged down by seniority that every judge who came from the High Court (to the Supreme Court) was a chief justice of a particular high court,” Attorney General Mukul Rohatgi submitted.
Noting that India is the only country where seniority has a say in the elevation of judges to the highest court, Mr. Rohatgi said the quality of merit is hardly the primary consideration.
He took the examples of apex courts in other countries such as the United States where the Chief Justice is the youngest among the sitting judges.
Justice J.S. Khehar, who heads the five-judge Bench also comprising Justices J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel, was quick to counter.
Justice Khehar said the criterion of seniority for judicial appointments was not something the government should tinker with or breach.
“Otherwise, somebody down the line can think that he could oblige the executive and get himself taken in,” Justice Khehar said.
The discussion came when the Bench found the wording of Section 5 (1) of the NJAC Act, 2014 rather vague. The provision deals with the appointment of the Chief Justice of India by the NJAC. It says the senior-most judge of the Supreme Court would be appointed CJI, provided he is “fit.”
“What does fit mean here? Does this mean a person is suitable if he is fit or strong?” the Bench asked.
Pointing to the earlier argument by the A-G that the executive had played a role in other countries to elevate younger judges on the basis of merit, Justice Khehar said “in these countries there is no basic structure doctrine (of separation of powers and independence of judiciary). Such things cannot be done in countries where the basic structure doctrine is followed.”
Mr. Rohatgi countered that judicial appointments, before the collegium system came into existence in 1993, were opportunities to hold meaningful discussions between the executive and the judiciary to choose the best judges.
“It worked very well. I dare say, it produced excellent judges,” Mr. Rohatgi said.
Mr. Rohatgi further said the concept of “primacy of judiciary” in appointment of judges was introduced in the second judges case of 1993. This case was heard by a nine-judge bench and led to the Supreme Court collegium system.
The A-G said if the court was now going to base its arguments on the primacy of judiciary as expounded by the 1993 judgment, then the petitions challenging the NJAC law should be referred to a larger bench and the current five-judge bench cannot decide it.
