NJAC fragile, laden with mischief, says constitutional expert Rajeev Dhavan

NEW DELHI: Constitutional expert Rajeev Dhavan told the Supreme Court on Friday that the recommendations of the proposed National Judicial Appointments Commission NJAC) were merely recommendatory in nature and not binding on the government.

A five-judge constitution bench, comprising justices JS Khehar, Jasti Chelameswar, Madan B Lokur,Kurian Joseph and Adarsh Kumar Goel,is hearing a batch of petitions challenging the legal validity of the new government’s twin laws that establish the NJAC and replace the existing in-house collegium system of appointing judges to the superior courts.

The statement of objects and reasons of the law states that the president may, if necessary,require the commission to reconsider the recommendation. However, if the commission makes unanimous recommendations on such a reconsideration, then the president shall make the appointment. Dhavan, appearing as amicus curiae in the case, said that the consultations would succeed and not precede the NJAC recommendations. This makes the NJAC fragile, fraught with mischief and places the judiciary in a position of vulnerability, he said.

The bench expressed its disquiet over the use of certain phrases, such as the law being intended to give a “meaningful role” to the judiciary in appointments and ensure “accountability” of participants in the selection process.

“This is not reverse (going back to the pre-1993 position fromjudicial to executive primacy) but worse,” justice Joseph remarked at one point when Dhavan pointed out that the chief justice would be sandwiched between politicians and laypersons appointed by a majority of politicians in the process.

Dhavan also took serious exception to the eminent persons’ clause in the law and the reservation provided to women and other minority groups in filling up the two seats meant for them on the NJAC. At least one of the members has to be from that category.

“Are they trying to introduce some sort of reservation? This provision is a farce, a total farce,” he said, adding this seemed to be an attempt to pander to vote banks.

The power to appoint superior court judges was a trusteeship that could not be gambled a way to laypersons appointed by a majority of politicians,he said.