New Delhi: The Supreme Court was told on Wednesday that the constitutional amendment to put in place the National Judicial Appointment Commission (NJAC), affected judicial independence as the union law minister`s presence in the panel would lead to politicisation of appointments to higher judiciary.
Contending that the presence of the minister "with his vast power of patronage" impinged the independence of judiciary - a basic feature of the constitution, senior counsel Ram Jethmalani told the constitution bench of Justice J.S. Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Goel to examine whether the minister`s presence has not resulted in the "politicisation of the process of appointment of judges to higher judiciary" and the consequent dilution of the chief justice of India`s position.
Arguing that a "corrupt government requires corrupt judiciary and they encourage the appointment of corrupt judges", Jethmalani said that under the pre-amended Article 124 of the constitution, the executive was bound to consult the CJI on the appointment of judges and CJI`s views were binding.
However, now primacy of the CJI`s view has been taken away under the NJAC and he has been made to share his constitutional position with five others including the law minister, two eminent people and two senior-most judges of the apex court next to him, he said.
Contending the NJAC mechanism posed a threat to the independence of judiciary, Jethmalani claimed that "the law minister with his assets of vast patronage can get one vote on his side and render the judiciary impotent and with two more on his side can often not only create a deadlock but also appoint their own person".
"I go a little further. Even the continuous company of the chief justice with the law minister at such meeting becomes a spoiling factor. A minister in regular meetings often leading to social meetings involving private talks about scandals and gossips, drinking and dining ... you control his mind. Even the company of the politicians vitiates the mind of the CJI."
Describing the NJAC Act, 2014 by the Prime Minister Narendra Modi`s government "more fraudulent", Jethmalani told the court that two eminent people to be nominated on the NJAC should have both "positive qualifications and negative restrictions".
While they must have complete understanding of judiciary in India including the qualities of good judges and country`s socio-economic realities, on restriction they should not engage in conflict of interest activities, he told the court.
Appearing for the Service Bar Association of Madras High court, senior counsel Arvind Datar assailed article 124C of the constitution which says that parliament may, by law, regulate the procedure for the appoint of CJI and the judges of the apex court and the high courts.
Seeking it be read down, Datar said that the parliament should not be permitted to interfere with the rules and regulations that would be framed by the NJAC on a future date.
He said that the entire procedure should be incorporated in the constitution so that it may not be easily interfered by parliament, adding they were for judicial supremacy and not exclusivity.
He said that if there was judicial supremacy in the selection and appointment of judges for the tribunals, then that supremacy becomes all the more pivotal in appointing judges to higher judiciary.
