The Supreme Court on Wednesday reserved its judgment on a batch of petitions challenging the constitutional validity of National Judicial Appointment Commission (NJAC) and extended its interim order protecting services of the additional judges till the verdict is pronounced
A constitution bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel, by their May 12 order, had protected services of additional judges whose two year term was ending during the hearing of the challenge to the NJAC for the appointment of judges to higher judiciary.
A batch of petitions including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others had challenged the constitutional validity of the constitutional amendment act and the the act setting up the NJAC
Drawing the attention of the court to additional judges, senior counsel Fali Nariman appearing for SCAORA told the court that in July, 12 would retire in various high courts, nine in August and another 14 in September.
The apex court’s May 12 order had said: “As an interim measure, we direct the appointment of additional judges in high courts, already in office, to be continued for a period of three months or till the date of their superannuation, whichever is earlier, during the pendency of the matters in hand, till their disposal.”
Appearing for the central government, Attorney General Mukul Rohatgi on Wednesday defended the provisions of the NJAC Act, 2014 and the provision of two eminent people being in the NJAC besides the CJI, two other senior most apex court judges and the union law minister.
Contending that the wisdom of selecting best people for the higher judiciary did not rest with judges alone, Rohatgi said that even other sections of society too possessed wisdom and it was their presence in the NJAC that would bring diversity in the selection.
Criticising a “too technical” approach in selecting judges, he noted the havoc such an approach played in the functioning of consumer courts, tribunals and arbitration. He said that what were supposed to be a qusai-judicial bodies are functioning like regular courts.
Flaying technical approach in judicial appointment, Rohatgi said, “It has destroyed the concept of arbitration. Arbitration proceedings extending to 50 to 65 sittings has become a norm. It was expected that arbitration would conclude in five to six sittings.”
“Why does it happens in this country. Why not in other parts of the world. I have done arbitration in other countersues and jurisdictions.”
He contended that because of an over technical approach, the entire system of court working including procedure has been transported to tribunals and arbitration and “consumer courts have been reduced to another judicial forum”.
Besides other issues, the three questions that may be addressed in the verdict are whether appointment of judges formed a part of the independence of judiciary - which in turn is one of the features of the basic structure of the constitution and whether judiciary had any primacy in the appointment of judges.
Other question that got focused during the hearing that was spread over more than three months was the provision providing for veto by any two members of the NJAC to sink a proposal and the criteria and role of two eminent people in the NJAC
Comments
Parliament has made the law giving mandate to NJAC.
The question is whether it is unconstitutional, not whether it is unjudicious compared to Collegium.
Corrupt and nepotistic judges cannot maintain standards when selecting judges.
Absolute power in the hands of judiciary in selection of judges corrupts the judges making the selection.
Just like incest/inbreeding within a family causes birth of retarded children, so also collegium system of selection of judges causes (over long time) selection of stupid judges because a mediocre judge will tend to select someone less intelligent than himself so as to not feel inferior to his junior judge. Overtime, we end up with stupid judges on the Supreme Court or family members of these judges.
NJAC is like intercaste marriage outside the box, which will produce excellent judges over time. Mixed breeding produces children with strong genes: example Barack Obama :) LOL!
NJAC panel contains 3 judges, 1 executive, 2 responsible civilians. This mixed breed of selectors with veto power will produce excellent judges and avoid nerds, retards, bookish narrow minded judges, stupid family members (Altamas Kabir's sister), old-boy-club coterie, etc. from becoming judges.
Altamas Kabir should be arrested and hanged for abuse of his power in selecting his sister to be a judge. It is a perfect example of absolute selection power in the hands of judiciary corrupting the judiciary. Where are the two eminent persons who could have stopped corrupt Kabir's sister's selection? We need them NOW!!!
part I: Union and Territory, part II: Citizenship, part III: Fundamental Rights, part IV: Directive principles of State Policy.
All the other parts of the Constitution are non-basic structural and procedural provisions.
"Supremacy of CJI" is not mentioned anywhere in the Constitution, let alone in the basic structure of the Constitution. The judgement of Shamsher Singh, in which "Supremacy of CJI" was inferred by the judges, is based on the premise of the old version article 124 of the Constitution. But article 124 has since been amended to 124A and no longer permits such an "inferred supremacy of the CJI," instead it makes NJAC the supreme authority. This does not violate the Basic Structure of the Constitution laid out in the first four parts--chiefly, fundamental rights.
In essence, the Shamsher Singh judgment is superseded and irrelevant after the Constitutional Amendment, and Ram Jethmalani is an old senile fool desperately trying to save a system he got used to and which he exploited. He feels threatened by the change just like any old fool will feel--it is old age human psychology of conservatism.
For proof, just look at the comments being made by the five judges in the panel hearing the NJAC case.
The judges come across as extremely scared and threatened by the meritocracy and good governance system of NJAC.
And it is no wonder: these judges are themselves a by product of the nepotist collegium era.
A lot of incompetents are presently in the SC and they are scared of NJAC.
A judge does NOT have a fundamental right to perform administrative acts.
A judge needs to be independent in his judicial acts subject to control by higher judiciary,
and does not have a fundamental right to perform administrative acts.
A Judge's primary job is to decide cases, not to appoint judges.
Administrative job such as appointing judges is a secondary, non-fundamental job for judges.
In summary, Judiciary does NOT have a fundamental basic right to appoint judges.
Primacy of judiciary in appointment of judges is NOT a basic structure of the Constitution.
Independence of judiciary does NOT include right to perform the administrative act of selecting judges.
Appointment of judges by judiciary is not a part of fundamental rights structure of the Constitution.
The Parliament has clearly spoken on who should appoint judges.
NJAC does not violate the basic structure of the Constitution.
PETITION CHALLENGING NJAC is untenable and SHOULD BE DISMISSED.
This is what we get with the collegium system.
What you said should read "cure worse than the disease."
The NJAC eminent persons will ensure that stupid people, who don't know English grammar and who can't express a logical thought in writing, will not be selected. A collegium would not be able to match such expertise of the two eminent persons; the narrow minded stupid supreme court judges are too busy with the technicalities and forget the big picture that eminent persons in NJAC have.
You are too stupid, just like the 5 judges on the Supreme Court bench, to understand the comparison arguments of AG Mukul Rohatgi.
Rohatgi was referring to how the collegium had become too technical in its appointments of judges and had lost the innovative human touch: the two "eminent persons in NJAC" would bring back this human touch and humanistic values to the NJAC and select good Supreme Court bench appointees. AS proof, he drew attention to how the closed technicalistic approach to selection of members to arbitration councils/tribunals had resulted in overly technical and inappropriate persons being selected who ruined the arbitration councils/tribunals through lengthy proceedings and defeated the original goals for setting up these councils/tribunals--which was to reduce litigation time.
You are never gonna be an AOR; give it up and become an advocate assistant instead.
The administrative procedure for appointment of judges is not a basic structure of the Constitution because: altering the appointment procedure of a judge does NOT influence the judicial decision making independence of judges after their appointment: judges continue to have judicial independence when deciding cases. The choice of appointment procedure puts no shackles on a judge after appointment. If a judge is found to be corrupt and influenced, the procedure for impeachment is specified in the Constitution as before.
BOTTOM LINE: Appointment procedure is NOT part of the basic structure. Parliament can amend the appointment procedure of judges in the Constitution. Article 124A NJAC is constitutionally valid.
The argument that an institution that has absolute discretion to appoint its staff breeds incompetency over generations is sad but true. The UPSC is no different except that the exam at least ensures fools are filtered out, as does the number of interview panels, etc. Imagine the Cabinet Secretary, Foreign Secretary and Chairman of Tax Boards had absolute discretion to appoint IAS / IFS / IRS officers .... dont think Supreme Court would take too kindly to that.
We seem to be stuck in a tine warp on certain colonial legacies such as
- judges having no accountability
- defence officers getting lavish perks and personal slaves
- bar divided into 'senior' and 'non-senior' advocates
- preservation of draconian contempt of court powers
High time the SC judges understood that the common man (who pays their salaries) has had enough of their shenanigans and self-serving behaviour.
F**K Dattu.
Here candy denotes the unwarranted supremacy role he enjoyed in appointments.
However, Parliament had amended the appointment procedure in Article 124 to remove the CJI and replace it with NJAC.
Therefore CJI can no longer claim to be the sole "necessary consultee"; it is now NJAC.
CJI has to live with it; no need for CJI to cry that he lost his power.
His power comes from laws made by Parliament.
CJI cannot make the laws.
Britain's JAC comprises of:
five judges,
two advocates from the legal profession,
five lay members (like our two eminent citizens),
a Tribunal Officer, and
one Magistrate.
The appointment to the U.K. Supreme Court is done by a collaborative process in which the appointment Boards and First Ministers from England, Scotland and Northern Ireland have role (like our law minister).
Apart from the JAC, there is the Judicial Appointments and Conduct Ombudsman (JACO) which is empowered to conduct investigation into the complaints about the appointment process and judicial conduct. Even complaints from dissatisfied candidates are entertained and examined.
SCHEDULE 12
The Judicial Appointments Commission
Part 1
The Commissioners
1 The Commission consists of—
(a) a chairman, and
(b) 14 other Commissioners,appointed by Her Majesty on the recommendation of the Lord Chancellor.
2(1)The chairman must be a lay member.
(2) Of the other Commissioners—
(a) 5 must be judicial members,
(b) 2 must be professional members,
(c) 5 must be lay members,
(d) 1 other must be the holder of an office listed in Part 3 of Schedule 14 , and
(e) 1 other must be a lay justice member.
(3)Of the Commissioners appointed as judicial members—
(a) 1 must be a Lord Justice of Appeal;
(b) 1 must be a puisne judge of the High Court;
(c) 1 other must be either a Lord Justice of Appeal or a puisne judge of the High Court;
(d) 1 must be a circuit judge;
(e) 1 must be a district judge of a county court, a District Judge (Magistrates' Courts) or a person appointed to an office under section 89 of the Supreme Court Act 1981 (c. 54).
(4) Of the Commissioners appointed as professional members—
(a) 1 must be a practising barrister in England and Wales;
(b) 1 must be a practising solicitor of the Senior Courts of England and Wales.
(3) A lay member is a person resident in England or Wales who has never held a listed judicial office or been a practising lawyer.
(4) A lay justice member is a justice of the peace who—
(a) holds no other listed judicial office, F3. . .
(b) is not a practising barrister in England and Wales, and
(c) is not a practising solicitor of the Senior Courts of England and Wales.
why does India with a population 1200 million have only 5 members in the NJAC?
India should have 20 to 100 members in the NJAC, instead of only 5.
The workload on NJAC will be enormous, so 20 to 100 members is appropriate.
"Kya, UK mein JAC hai?"
"Challo, apun ko bhe JAC mangtha!"