The Supreme Court on Tuesday pointed out deficiencies in the National Judicial Appointments Commission and said these infirmities could create “dangerous situations“ like suppression of judges and ignoring representation of women and dalits in higher judiciary.
A five-judge bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel said the collegium system had always given preference to women and people from the dalit community, while selecting judges and expressed apprehension that NJAC in selecting judges would take up the criteria based solely on seniority, merit and ability without any preference to women and dalits.
Judges will be superseded while deciding appointment in the Supreme Court and high courts as the selection will be on the basis of merit. It will lead to a dangerous situation, the Bench opined.
The court said under the new system, there was no provision for regional representation of judges in the SC and there was a possibility that a group of judges from one particular high court could be elevated to the SC. We are also concerned about one of the basic feature of the Constitution, that is federal structure. The NJAC Act does not allow regional representation in the SC, the bench said.
Addressing the court’s concerns, Attorney General Mukul Rohatgi said the government would not “ruffle feathers” by superseding judges. However, he asked if the collegium system had given preference to women and dalits, why were so few women appointed as judges in the SC?
“There is only one woman judge in the SC and it shows that there is something wrong in the system,“ he said to justify scrapping of the collegium system.The AG said all objections raised by the bench would be addressed while framing rules for making NJAC functional. But Justice Khehar wondered whether the rules could override the Act.
The AG said the NJAC did not interfere with the independence of judiciary or violate the basic structure of the Constitution. “Appointment of judges is just one very small part of independence of judiciary but the major part comes only after the appointment. We cannot view independence of judiciary only from the appointment point of view. There are many pillars of judicial independence and it is a far cry that every element of independence is equated with basic structure,“ he said.
Rohatgi said there was no connection between appointment of judges with the basic structure of Constitution and Parliament had the power to take a decision on the procedure to be followed for appointment of judges.