New Delhi: The Supreme Court on Thursday raised questions over the lack of provisions in the law for removal of two eminent persons from the six-member National Judicial Appointments Commission (NJAC) and sought to know whether there was any scope for judicial review of their selection.
"These eminent persons would be there for three years. How will you (Centre) remove them. Therefore, the selection of eminent persons in the commission has to be unquestionable process or there should be a process of removal," a five-judge Constitution bench headed by Justice J S Khehar said while hearing petitions challenging the validity of the NJAC Act.
"Is there any scope of judicial review of the appointment of eminent persons in the NJAC? Suppose an eminent cricketer is appointed and somebody says that he is not so eminent to be in the panel, then what is the remedy," it said.
The court's observation came minutes after Attorney General (AG) Mukul Rohatgi started advancing arguments on the manner of selection and the roles to be played by two eminent persons in the six-member NJAC.
The court took on Centre's plea that NJAC is a "broad-based" and "transparent" method to appoint judges by saying that if it refuses to appoint a person of "shady" character as a judge, then he may file a defamation case.
"Sometimes there is no proof that the person is of shady character," the bench said, adding that subjecting judges' appointment to the RTI may lead to defamation for those rejected on "doubtful integrity".
"Then scrap the RTI," the AG said, adding, "there are pluses and minuses of a system. Such information can be protected under RTI also."
"It is disastrous either way, if a lawyer, who applies, is appointed or rejected," the bench said.
Then somebody must suffer for the larger good, the AG said.
The Attorney General responded to the query on removal
of eminent persons from the panel saying that the Parliament, in discharge of its functions, may make the "law or rules".
Referring to provisions in the General Clauses Act, he said, "Whoever appoints a person, can remove him. In this case, the troika (the PM, CJI and Leader of Opposition) has the discretion. It should be left to its discretion."
"All this is in the realm of academic discussion. It (NJAC) has not started working. Even rules have not been framed," he said, adding that moreover, it is a nomination and not a 'pucca' appointment and, hence, can be withdrawn.
"The removal cannot be so simple when the appointment is made under the Constitution. Here the term is fixed and the removal cannot like that," the bench said.
"Do you say that hire and fire rule can apply in the case of eminent persons," it said.
Rohatgi responded by saying, "Nobody can say that the troika of the Prime Minister, the CJI and the Leader of Opposition will do some hanky-panky and the appointment of these two will be on the piece of paper. Nothing more. It is not the office of profit...".
At the outset, he referred to the composition of the Constituent assembly where non-lawyers had participated and contributed in the framing of the Constitution and said "it is not as if, a person who has nothing to do with the law cannot contribute in the NJAC."
Rohatgi said the eminent persons will represent the common public, the "ultimate consumer of justice".
The bench objected to it said, "don't call them consumer of justice. Call them seekers of justice".
"The question is: Will the presence of two eminent persons vitiate the selection process so much that it will topple the pillars of the constitution itself," Rohatgi said that persons like great film maker Satyajit Ray, Bill Gates and M S Swaminathan can contribute to judges' selection process.
The bench then asked that what inputs can be provided by a person of eminence like Ray in the appointment of judges.
"He made movies on the plight of poor persons and despite his no knowledge of law, he can contribute through his vast experience," Rohatgi said.
"Neither Legislature nor Judiciary can remain oblivious of changes taking place in the world and therefore, the mindset has to change."
One of his roles could be to keep a tab on the executive and the judiciary in the panel as being a representative of the common public, he said.
The bench, in a lighter vein, asked Rohatgi to allow "Ray to rest in peace and use some other names".
He also referred to the composition of consumer panels where non-judicial members outnumber the judicial members and said that it is not the case in the NJAC.
"The possibility of abuse are always there. Here, the two eminent persons will take guidance from the judges and moreover, they do not have any axe to grind," Rohatgi said.
The AG referred to the system prevailing in other countries including England where a successful practising lawyer is requested to become a judge for two-three years.
"Our system has become so stereotype that we do not want to come out of it and change it...," the AG said, adding that he had talked on it with five-six Law Ministers but nothing happened.
There is lack of "sensitisation" on the issues such as appointment of enough women, persons from SC/ST and minorities as judges.
"Why it did not happen? Why it should happen our life? This should happen now... The Parliament has considered all this and thought of bringing it (NJAC)," he said.
Rohatgi, responding to a query as to how the appointment through NJAC would be "perfect", said that there are "chances of misuse and use".
"Let it function first, then we will think over it. All this is based on presumption. Please, do not block the way. Allow things to take place, if any change is required then it it will be done in due course in accordance with law," he said.
