Justice J. Chelameswar said: “The point sought to be highlighted is that the judiciary is not the only constitutional organ which protects the liberties of the people. Accordingly, primacy to the opinion of the judiciary in the matter of judicial appointments is not the only mode of securing independence of judiciary for protection of liberties.”
He observed that the judiciary’s insistence that its voice should have primacy over the other organs of governance is “empirically flawed without any basis either in the constitutional history of the nation.”
He, however, did not go into the merits of the NJAC, saying it had already been struck down by the majority on the Bench.
Countering Justice Khehar’s leading judgment for the Bench that the presence of the Union Law Minister on the NJAC would give rise to “conflict of interest”, Justice Chelameswar wrote: “The executive, with a vast administrative machinery under its control, is capable of making enormous and valuable contribution to the selection process. The Constituent Assembly emphatically declined to repose exclusive trust even in the CJI. To wholly eliminate the executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people.”
Justice Chelameswar said he did not find anything “inherently illegal” with two members of the NJAC having the power of veto over the others to stall a recommendation.
“There is no accountability in this regard. The records are absolutely beyond the reach of any person, including the judges of this court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country,” Justice Chelameswar wrote in his judgment.