New Delhi: The Centre on Wednesday sharply criticised the erstwhile collegium system of appointing judges saying that it did not follow the principle of meritocracy in which many "undeserving" persons became judges, some of whose names it gave in the Supreme Court.
Attorney General Mukul Rohatgi, who was yesterday asked to give a list of "bad appointments of judges" made under the collegium system, today gave seven to eight names of judges who were appointed despite adverse reports from the Intelligence Bureau.
He claimed that when the collegium insisted on such recommendations, the Centre was bound to accept them.
"The collegium did not follow the principle of meritocracy in appointing judges and hence, many undeserving persons got appointed as judges," Rohatgi told a five-judge bench headed by Justice J S Khehar hearing petitions challenging the validity of the National Judicial Appointments Commission (NJAC) Act.
"In 2013, the proposal of appointing a judge was dropped. Then, why should the Chief Justice of India revive the same proposal before demitting the office. I say how and why it was done.
"The proposal was earlier opposed by two judges of this court long back. Then why was it revived. I am just responding to a short query," he said to a bench which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.
On the plea that the appointments were insisted upon by the collegium, the bench said, "You (Centre) had all the means. What was the IB doing. It is not the job of the IB to choose a man of choice...".
Rohatgi also raised the issue of seniority being
considered over efficiency while promoting a judge and said, "a judge who did not dispose of three figure cases became the Chief Justice of different High Courts and judge of the Supreme Court".
"Mistakes will be there, whether this system or that system. But the question is how serious are they," the bench said.
During the hearing, Rohatgi also went on to say that "a bad judge should not be allowed to come as one bad fish spoiling the whole (system). One bad egg does the same."
Defending the National Judicial Appointment Commission (NJAC), Rohatgi today referred to the concept of separation of powers between different organs of state.
"Most significantly, it envisages an independent judiciary existing within a system of checks and balances between various branches pervading the entire constitutional scheme.
"Thus when the validity of the 99th Amendment against the basic structure is to be assessed it must be in the light of various facets of the basic structure and not merely against an absolutist conception of judicial independence as has been contended by the petitioners.
"In addition to the independence of judiciary and separation of powers, democracy has also been held to be one of the basic features of the Constitution," he said.
He said independence of the judiciary forms part of the basic structure and is an essential feature of the Constitution"
"It is thus submitted that multiple features and aspects of the Constitution are relevant in understanding how the independence of the judiciary is sought to be protected in India. It is not limited to the method of appointment of judges alone," he said.
Independence of judiciary, whether functional independence for judges or institutional independence of the judiciary, is located in a number of features not limited to appointment alone, he said.
He further said that the separation of powers and checks and balances also form part of the doctrine of Basic structures and no organs of state can enjoy absolute freedom.
"The importance of the judiciary retaining public confidence, especially in the manner in which appointments to the higher judiciary are carried out thus must be seen both in the context of independence of the judiciary as also the need for checks and balances on it," he said.
The new law makes an attempt to ensure plurality in the appointment process by requiring presence of the CJI, two senior-most judges of the Supreme Court, Law Minister and two eminent persons on the NJAC.
"Such a diverse composition would ensure plurality, which is intended to act as a check against arbitrary decision-making, while maintaining judicial independence," the AG said.
Rohatgi also referred to judges' appointment procedures adopted in 15 democracies in the world and said, "it is submitted that with the exception of Italy to a limited extent, in none of the countries surveyed does the judiciary enjoy any primacy in the matter of appointments.
"Even in Italy, the chairperson of the CSM (appointments commission) is the President, who ultimately appoints judges. In no country is participation of the executive per se or even its dominant participation, opposed or frowned upon. Such lack of judicial primacy is not seen as detracting from the existence of an independent judiciary in any other countries."
He also gave the procedures adopted in countries like Kenya, Pakistan, South Africa and UK and Israel.
Rohatgi also referred to the appointment of judges in Patna and Madhya Pradesh where appointments were made despite reservations from the Executive.
"There is a recent case of Madhya Pradesh. Five names were proposed in April, 2014. The collegium rejected two names due to intra-family division and due to adverse IB report. And later, it recommended one against whom an adverse IB report was there," he said.
Referring to a recent incident of Madras High Court where a judge issued a contempt notice to the Chief Justice of the High Court, he said, "Many judges appointed by collegium are creating havoc in the country. They do not follow the decorum and discipline.
"You cannot say how a judge would turn out to be. The person later creates a havoc by warning the Chief Justice with contempt action."
Senior advocate K K Venugopal, who had represented the Madras High Court registry before the apex court in the case, supported Rohatgi and said that now the same High Court judge has lodged a complaint against the Chief Justice of India before the SC/ST Commission.
In the day-long hearing, he also raised the issue of public faith in the judicial system and cited an example of a former apex court judge who used to come late and this fact was well known before elevation to the Supreme Court.
"Judges, who have no sense of dignity and decorum have been here for long. The court should not sit on this for late. If you want to do it you do," Rohtagi said, adding that the judiciary should have taken corrective measures.
"It is a pitiable situation". The Chief Justice of India and the Chief Justice of High Courts should "put their house in order", Rohatgi said and made clear that this (on the late coming of the judge) was his personal opinion unrelated to the present case.
