NJAC to give executive the final say on judicial appointments: Fali S Nariman

NEW DELHI: Constitutional expert Fali S Nariman said the proposed six-member National Judicial Appointments Commission (NJAC) would give the executive final say on judicial appointments as any two of them would have veto power. “Judges should have the last say,” he said in the Supreme Court on Tuesday. “The law and the constitution are clear. Whether (Article) 124 will remain in its pristine glory is not the question. Whether the introduction of the NJAC Bill was unanimous or not in Parliament is not the question. The question is: why did the government ignore the Venkatachaliah report?” He was referring to the recommendations of the MN Venkatachaliah committee that reviewed the working of the constitution.

Nariman was appearing for the Supreme Court Advocates on Record Association (SCORA) before a three-judge bench comprising justices Anil R Dave, Jasti Chelameswar and Madan B Lokur that’s hearing several petitions challenging the government’s twin Acts creating the NJAC, which will replace the collegium system of appointing judges. The two Acts have received presidential assent but are yet to be notified.

A law comes into effect once it is notified in the official gazette. “The independence of the judiciary must not be affected,” Nariman said. “Why six, why not five?” The Venkatachaliah committee had suggested a five-member body, including the chief justice of India, two of the top court’s senior-most judges, the law minister and an eminent person to be appointed in consultation with the chief justice.

Nariman asked why the government had dropped this blueprint in favour of the NJAC. He said the government’s statement of objects and reasons in the two Acts didn’t refer to judicial independence, let alone commit to it.

He said the association would support the kind of panel recommended by the Venkatachaliah report to replace the collegium as it would ensure judicial independence as well. He also demanded that the court immediately stay the Acts to prevent any uncertainty over fresh appointments made by the collegium in the interim.

Justice Chelameswar observed that the argument could cut both ways. “Can the court allow the existing system to continue in the face of a constitutional amendment? Can someone not contest these appointments later on this ground?” he said.