Senior Advocate Dushyant Dave had argued passionately in favour of the Judicial Appointments Commission before the Supreme Court, notes Justice J.S. Kehar in his ruling. The judge, however, went on to record that when the counsel was asked whether the President of the Supreme Court Bar Association ( which Dave is at present) or the chairman of the Bar Council of India would merit a place in the Commission as 'eminent people', Mr Dave's instant reaction was that it would be 'disastrous'.
While ruling against the NJAC as bad in law and unconstitutional, Justice Kehar dwells at length on the composition of the NJAC which, as per the Bill passed by Parliament, was to comprise the Chief Justice of India, two senior most judges of the Supreme Court, the Union Law Minister and two 'eminent people' chosen by the PM, leader of the opposition in the Lok Sabha etc.
The court felt that since the Act also provided that two of these six members of the NJAC could veto any appointment, it was possible for the two 'eminent people' or one of them in collusion with the minister to stall an appointment favoured by the CJI and the two other judges. This was not only bad law but also undermined the Independence of the Judiciary. Indeed it would also be possible for the two 'eminent people' to go against the view of the four other members of the Commission.
And yet the law laid down no qualification or disqualification for the two eminent people to be nominated. The Attorney General, the judge noted, argued that the two members thus nominated would actually be 'lay men' with no connection to the judiciary or the legal profession. The Attorney General took the high ground to argue that even ordinary citizens could play a role in the appointment and transfer of high court judges. Justice Kehar noted that the counsel for the state of Maharashtra argued differently and claimed that the two eminent people would actually be eminent jurists, law teachers and even retired judges. Highlighting the contradictory stands of the two counsels, Justice Kehar found the provision unacceptable.
Indeed a Government which finds an average actor like Gajendra Chouhan fit to be the chairman of the Film & Television Institute of India, the judge argues, can scarcely be trusted with the selection of the two eminent people as members of the NJAC. What is left unsaid in the judgment is what would prevent the nomination of Sachin tendulkar, Amitabh Bachchan or Hema Malini as members of the Commission and whether these eminent people could be trusted with the appointment of judges.
In the NJAC proposed by Parliament, the Chief Justice of India would have been just one of the six members. He would have forfeited the right to either initiate the appointment of a judge or even convene the meeting of the NJAC. Nor was the CJI allowed a casting vote in case of a tie. Justice Kehar noted that under the scheme, the Chief Justice of India could be outvoted by a majority or his nominee could be vetoed by others. This would undermine the authority of the CJI and lead to a breakdown of the judicial process, the ruling rightly feared.
Justice Kehar also notes that the Parliament provided no 'quorum' for meetings of the NJAC. The omission, he concurred with the petitioners, did not appear to be an innocent lapse because the Law Ministry in the same session of Parliament had placed a Bill on Goods & Services Tax which provided for a council and a quorum for its meetings.
What's more, the NJAC Act passed by Parliament ominously laid down that while the Commission would appoint the senior-most judge of the Supreme Court as the Chief Justice of India, it would be subject to he being deemed 'fit' by the Commission. While the Attorney General argued that there was nothing sinister in the provision and that what was meant was that the judge should be 'physically and mentally fit', the judge was not convinced that the goal post would not be shifted as per the convenience of the executive.
The NJAC Act also provided that the appointment of judges as the CJI would take into consideration their remaining tenure and if it were to be less than two years, the judge would not be eligible to be elevated as CJI. The ruling records that only 12 of the 41 Chief Justices of India have had tenures of more than two years. Justice Kehar also points out that since high court judges are appointed in batches and often within weeks or months of the preceding batch, a mechanical consideration of their seniority would leave out several deserving judges.
If the NJAC were to function, these infirmities first need to be corrected. And as the ruling points out, the manner of functioning of the NJAC cannot be left to Parliament but must be laid down in the Constitution itself.
It is because the ruling is so air-tight that the Government cannot afford to file for a review by a larger bench. Which also explains why the Government has been quick in forwarding the recommendations made by the collegium to the President for his approval .
The ruling by the apex court exposes both the Government and the Parliament. While the executive is patently guilty of drafting a poor law, the Parliament failed in its duty to debate, deliberate and scrutinise the Bill before passing it. As pointed out, both the Lok Sabha and the Rajya Sabha took a day each to deliberate on the legislation. Not more than 35-40 MPs in each House would have spoken before the legislation was deemed to have been passed.
Now that it has been struck down by the Supreme Court as unconstitutional, the Parliament and the state assemblies have an opportunity to go back to the drawing board, hold consultations with stakeholders, remove the infirmities and come up with a more workable NJAC.
But if the arrogance of Mr Arun Jaitley, who has lashed out at the alleged 'tyranny of the unelected', is any indication, the Government does not appear to be in any mood for a course correction.