In a sharp criticism of the highest judiciary, the Centre said on Tuesday that judicial appointments over the years had been “bogged down” by the seniority aspect, leaving no place for merit.
The criticism 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.
Mr. Rohatgi said the quality of merit was hardly the primary consideration. He gave the examples of apex courts in countries such as the United States where the Chief Justice was the youngest among the sitting judges.
Justice J.S. Khehar, who heads the five-judge Bench, said the criterion of seniority 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. “In other countries, there is no basic structure doctrine [of separation of powers and independence of judiciary].”
The discussion started when the Bench found the wording of Section 5 (1) of the NJAC Act vague. The provision dealing with the appointment of the Chief Justice of India says the senior-most judge 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.
