New Delhi: The Centre today told the Supreme Court that two eminent persons in the six-member National Judicial Appointment Commission (NJAC) for appointing judges for higher judiciary need not have legal background. “The qualification for an eminent person under the law is not that he should have a legal background and the same position is prevailing in the United Kingdom,” Attorney General Mukul Rohatgi told a five-judge Constitution Bench, headed by Justice J S Khehar, which is examining the constitutional validity of NJAC Act, 2014.
The clarification from the Attorney General came as senior advocate Ram Jethmalani and others, who have argued against replacing the two-decade old collegium system of appointment of judges by judges, contended that the new law was “vague” on the issue of eminent persons. “We have tried to come out with the broad-base system on appointment of judges and why should there be no new system? Why can’t we try a new system? We have made changes earlier also. The presence of eminent person will act as checks and balances,” Rohatgi submitted.
A detail submission by the Attorney General to defend the new law will be advanced later as now the bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel, has given chance to argue to all those who have opposed the new law.
Jethmalani, who continued his arguments, said the statute is vague on the issue of eminent persons in the panel as “there are millions of people who will feel that they are eminent.” He said for a person to be considered as eminent to be in NJAC must have the intimate knowledge of major qualification of a person as a judge of a High Court and the Supreme Court and “the only person who fulfills this qualification is the leader of the Bar and not the Law Minister”.
Asked by the bench as to who could be the leader of the Bar, he said “the leader of the Bar is an acknowledged person without any dissent.”
One of the judges in the bench said “gone are those days when Advocate Generals in states were considered to be the leader of the Bar”. “What is the role of the eminent person is also very vague in the statute,” Jethmalani said while supporting the collegium system of appointment of judges which can be made a little more transparent.
“The only defect with the procedure of the appointment of the judges under the collegium system is that it is not that transparent,” he said and added that it cannot be left only on four persons in the collegium to take decision and to make it a more transparent system “you must have a person who knows about a person wanting to be a judge”.
He even suggested that a person wanting to be a judge should come through a process of advertisement. “Vacancy has to be advertised and no need for change of collegium system,” he said. However, the bench questioned its practicality saying “a person not selected through that process may feel stigmatised”.
While the issue of transparency was being deliberated, the bench said the selection process in the collegium system is only limited to selecting a good lawyer and though there are walls, it cannot be said that it is not transparent. “Tell us, has any name pushed by collegium has turned up to be of questionable integrity? You have been Law Minister. You were part of the system considering the name of the judges,” the bench wanted to know from Jethmalani.
“After collegium has cleared the name, how many appointments have been turned down? the bench further asked.
While the deliberation was going on, the bench said it was not a question which system is better, the previous or the new one. “The question is there should not be compromise with the independence of judiciary,” the bench said adding that “Parliament in its wisdom can change the system but not in the way to compromise with the indepdence of the judiciary. No matter who is in and who is out”. “When a father looks for a groom, he does his best but is it not that there is no mistake?” the bench observed.