Will the appointment of judges be open to public scrutiny?

A constitution bench headed by Justice JS Khehar is hearing petitions challenging the constitutional validity of the newly created National Judicial Appointments Commission (NJAC). Arguing in favour of the appointment of judges under the NJAC, the Attorney General Mukul Rohatgi said that the appointments would be subject to Right to Information (RTI) queries and thus would be open to public scrutiny unlike the collegium system which he termed as opaque. Defending NJAC, he contended that as per the Act and rules to be framed in the new system, the appointments shall be subject to RTI queries.

Activists have long complained against the lack of transparency in the appointment of the judges. Rohatgi argued that a citizen can know the bonafides of the judges being appointed as the criteria and process of their appointments would be open to scrutiny. He said that the people will know why certain persons have been selected as judges and requested the bench to let the new system work. The 5 member bench raised queries about certain provisions of NJAC and sought to know why there was no provision for the situation where a name recommended by the panel is vetoed by two members. Rohatgi tried to satisfy the bench amidst deliberations whether the case should be referred to a 11 member bench.

The discussions during the hearing related to the various provisions of the Act and the possible fallout. Under the act, the commission shall consist of six members and the members shall be Chief Justice of India (CJI), the two senior-most Supreme Court judges, the Union Law Minister and two others. These two “eminent persons” shall be selected by a panel containing the CJI, Prime Minister and the leader of the Opposition (or largest Opposition party). It was pointed by different counsels and the bench that:-

·         Any two dissenting members can veto any appointment or transfer -

·         The NJAC can bypass the senior-most judge while selecting a new Chief Justice.

·         No procedure has been laid down for removing any of the six members of the NJAC.

·         The formation of the NJAC was against the basic structure of the Constitution

·         A larger bench should hear the case as two 9 judge benches had in 1993 and 1998 accorded primacy to the judiciary in judges’ appointments.