Turning the arguments on the National Judicial Appointments Commission (NJAC) on its head and countering the views aired by Union Law Minister D.V. Sadananda Gowda recently, the government of Madhya Pradesh, the first State to respond on the issue in the Supreme Court, has said that the new law makes the judiciary more independent and powerful in selection of judges than before.
The State, represented by senior counsel K.K. Venugopal, said the NJAC, in reality, “dilutes” the role of the executive in the selection of judges.
In his 15-page written submissions before a five-judge Constitution Bench on Friday, Mr. Venugopal argued that the collegium system and the 1993 judgment, which ushered it in, ceased to exist with the 99th amendment incorporating the NJAC in the Constitution.
He said the touchstone to test if the NJAC was encroaching on, or emasculating, judicial independence was comparing it with the original Article 124 of the Constitution. A constitutional amendment should be tested on the Article which it sought to replace, not a court judgment.
The original Article 124, as devised by the Constitution-makers, only afforded the Chief Justice of India the role of a “consultee”.‘Decisive voice’
In fact, the government was the “decisive voice” in judicial appointments.
“If, therefore, the 99th amendment is examined in the background of the original Constitution, what would be apparent is that the judicial wing, which had only a consultative status, has now been elevated to that of a participant in the decision-making process itself. Out of the six members [in the NJAC], three of them belong to the judicial wing, and therefore, the judicial wing has primacy in the matter of appointments,” Mr. Venugopal submitted.
The Centre has consistently maintained that the judiciary has only parity and no primacy in judicial appointments. Attorney-General Mukul Rohatgi said that “predominantly”, the job of selecting judges was that of the executive. The government’s top law officer submitted in the Supreme Court that the concept of judicial independence kicked in only after a judge started office. It did not include the manner in which judicial appointments were made.
The Law Minister said judges should not feel left out merely because they did not enjoy primacy in numbers in the six-member NJAC, consisting of the Chief Justice of India, two senior-most judges, the Union Law Minister and two eminent persons. Mr. Gowda too is reported to have said that independence of the judiciary began after judges were chosen.
Madhya Pradesh argued that the three judges on the NJAC had “a power of veto which can be exercised if the other members together seek to push through a candidate, who, according to the judges, is not an appropriate candidate for appointment.”
From a decisive role in judicial appointments under the original Article 124, he argued, the government’s presence in the NJAC had been diluted to just one representative — the Law Minister.
With the two eminent persons personifying a “fair reflection of society”, he said the NJAC took away judicial appointments from the exclusive domain of the executive under the original Article 124 and threw it open to diverse views, with the judicial wing predominating.
“This [NJAC] could only be a dramatic improvement so far as the judiciary is concerned in regard to their status in the appointment process of judges,” Mr. Venugopal submitted.