‘Right to appoint judges part of independence’

Senior advocate and jurist Fali S Nariman, appearing for the Supreme Court Advocates on Record Association (SCAORA), told a five-judge bench headed by Justice J S Khehar that the right to have its say in the appointments is the "core" of the independence of the judiciary.

"Right to insist is the core of the right. It is the right of appointment. It is not the only part of independence of <g data-gr-id="56">judiciary</g> but it is a vital part of it," he told the bench, also comprising justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel which is hearing the petitions challenging the validity of the NJAC Act.

He was responding to the submission of Attorney General Mukul Rohtagi that judges, who will form a major block in the six-member NJAC, will have the <g data-gr-id="51"><g data-gr-id="54">primacy</g>,</g> if any, as they can always block a bad appointment.

Rohtagi had said that only the right to insist on appointments has been taken away and this does not infringe the basic structure of the Constitution.

Nariman, at the outset, referred to various write-ups that had hailed the 1993 verdict by which collegium system of appointment of judges was conceived and <g data-gr-id="38">operationalised</g>.

Seeking quashing of the constitutional amendment and the law which set up the NJAC, he said that material alteration has been affected in the Constitutional scheme by allowing two of the six NJAC members to veto an appointment and it amounted to substituting the Constitutional scheme.

“It jeopardises the entire law. This NDA government did not use its own head, it rather followed the Congress party’s model,” he said.

On the issue of two eminent persons, to be nominated in the NJAC by the panel of Prime Minister, the Chief Justice of India (CJI) and leader of opposition, Nariman said that they should not be given the voting right.

“You consult the eminent persons. Make them consultees and do not give them voting rights,” he said adding that at best, they can be made part of “<g data-gr-id="57">decision making</g> process and not to the decision taking process”.

The senior lawyer also objected to Centre’s submission that NJAC has been brought as the people wanted it and said, “why do people want it because it is being fed by media”.

Responding to the criticism that he had been critical of the collegium system in his autobiography, he said, “I also criticised it. But that is not the point here. The point is the institution and its independence. The Supreme Court is the last word on the interpretation of the Constitution”.

He also said that Justice J S Verma, who wrote the majority judgement in the second judges case in 1993, used to consult various eminent lawyers in the appointment process of judges and <g data-gr-id="53">latter</g> this practice was not followed.