Bench feared a culture of “reciprocity” of favours

Feelings of pay back to political-executive would be disastrous to the independence of judiciary, says Justice Khehar.

While Justices Lokur, Kurian and Goel, agreed with Justice Khehar’s nearly 500-page ‘Order on Merits’ that the NJAC and the Constitutional Amendment defeated the primacy of judiciary over the government in the appointment of judges, Justice Chelameswar differed, saying that “judiciary cannot be the only constitutional organ capable of protecting the liberties of the people.”

Justice Chelameswar disagreed with his fellow judges and upheld the validity of the Constitutional Amendment. In his exhaustive judgment approved by the majority on the Bench, Justice Khehar attacked the NJAC laws on merits, and said they would breed a culture of “reciprocity” of favours between the government and the judiciary, and thus, destroy the latter.

Justice Khehar asked how future judges appointed under the NJAC can be expected to be independent-minded when the Union Law Minister is one of the six members of the Commission appointing them.

“Reciprocity, and feelings of pay back to the political-executive, would be disastrous to the independence of the judiciary. [With] The participation of the political-executive, the selection of judges, would be impacted by political pressure and political considerations,” Justice Khehar observed.

He said in a situation where government is a major litigant in the higher courts, this feeling of reciprocity may lead to disastrous consequences.

The judgment said cases involving the government on sale and exploitation of natural resources through private entrepreneurs come to court. These are cases with “massive financial ramifications” and require judicial clarity of thought and fair mindedness.

“Sometimes accusations are levelled against former and incumbent Prime Ministers and Ministers of the Union Cabinet, and sometimes against former and incumbent Chief Ministers and Ministers of the State Cabinets... Since the Executive has such a major stake, in a majority of cases, which arise for consideration before the higher judiciary, the participation of the Union Minister in charge of Law and Justice, as an ex officio Member of the NJAC, would be clearly questionable... One of the rules of natural justice is that the adjudicator should not be biased,” Justice Khehar observed.

Veto power On the controversial power of veto accorded to the two ‘eminent persons’ on the NJAC, the judgment said it was plain “obnoxious.”

The court termed them as just “two laymen” whose qualifications are left vague and undefined in the law. Justice Khehar observed it was “absurd” and demeaning to the primacy of judiciary that they have been given the power to freeze the considered recommendations of the Chief Justice of India and two seniormost Supreme Court judges in judicial appointments.

The court trashed Attorney-General Mukul Rohatgi’s argument that qualifications of the eminent persons was a “trivial” issue and there was no cause to fear that they are selected by a panel headed by the Prime Minister.

It also refused to accept the participation of the Prime Minister and Leader of Opposition in the selection of these “eminent persons”, saying it was “retrograde.”

The court rejected the government’s demand to take a re-look at the 1993 and 1998 judgments in the Second and Third Judges cases, which ushered in the collegium system.

How the selection process works in various jurisdiction

	Since 1993, a collegium, consisting of the Chief Justice of India and other senior SC judges, make recommendation for persons to be appointed as SC and HC judges, to the President.
It consists of the SC President, his deputy and one member each appointed by the JACs of England Scotland and Northern Ireland. The JACs comprise lay persons, members of judiciary and the Bar.
	Justices are nominated by the President and confirmed by the US Senate. Senate Judiciary Committee holds hearings and votes on whether nominations should go to the full Senate.
It is unique as the country has an election process to appoint judges.Half the member of Federal Constitutional Court are elected by the executive and half by the legislature.
	The South African Judicial Services Commission recommends the list of candidates to be appointecd as Supreme Court judges. All other judges are appointed on its advice.