‘Lay members in NJAC a blow to judicial independence’

Senior advocate Rajeev Dhawan submitted that Article 124A of the 99{+t}{+h}Constitution Amendment Act 2014 allowed “random lay people to be appointed by a three-member panel whose majority is politico.”

“If this is not interference with judicial independence, what is?” Mr. Dhawan asked, arguing before a Bench of the Supreme Court hearing arguments challenging the validity of the National Judicial Appointment Committee (NJAC).

Justice J.S. Khehar, who heads the Bench, asked how lay men can be expected to possess specialised knowledge as to which judge is corrupt and which not or evaluate the ability and knowledge of a High Court judge.

“And remember, the NJAC will be deciding on judicial appointments and transfers across the length and breadth of the country,” Justice Khehar said.

Justice A.K. Goel, another judge on the Bench, orally observed that such a mechanism of including lay people could be employed in appointing persons for the lowest judiciary.

“It can be done at the entry point. For appointments at the highest level, the actual performance of the judge should be known,” Justice Goel said.

Mr. Dhawan pointed out that the government, through proviso (d) in Article 124A, has reserved the position of one of the eminent persons for women, Minorities, Scheduled Castes and Scheduled Tribes and Other Backward Classes.

“Why on earth should there be reservation in this? This proviso is a total farce,” Mr. Dhawan said.

Agreeing with Mr. Dhawan, Justice Kurian Joseph, a judge on the Bench, said the judiciary would be “compromised” if “interests” happen to govern the appointment of eminent persons, especially when they wield veto powers over judicial appointments.

Chief Justice H.L. Dattu recently declined Prime Minister Narendra Modi’s invitation to sit with the panel to decide on the “eminent persons.”

The CJI had written to Mr. Modi that it would be “inappropriate and undesirable” on his part to the join the three-member panel when the Constitution Amendment is under the Supreme Court’s scrutiny.

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