Total transparency impossible, says SC

Judges’ appointment

R Sedhuraman

Legal Correspondent

New Delhi, June 11

The Supreme Court today said it would be impossible to ensure total transparency in the appointment of judges even under the National Judicial Appointments Commission (NJAC) since this would prevent the commission members from expressing their “honest opinion”.

A five-member Constitution Bench headed by Justice JS Khehar made the remark in response to Attorney General Mukul Rohatgi’s contention that the transparency being brought into the procedure by placing NJAC under the Right to Information (RTI) Act would ensure only competent candidates with impeccable integrity were appointed as judges of the SC and high courts.

The Bench, however, said making public the reasons for rejection or selection of candidates for the post of judges would come in the way of the six NJAC members assessing the merits and demerits of the aspirants in detail.

Headed by the Chief Justice of India, NJAC would include the two senior most SC judges, the Union Law Minister and two eminent persons nominated by the Prime Minister, CJI and Leader of Opposition (LoP) in the Lok Sabha.

If NJAC members’ opinion was disclosed under RTI, the practice of lawyers rejected for the post of judges would be doomed, while any adverse remarks made against those selected candidates would prove to be disastrous for them after they had taken over as judges, the Bench noted. The other members of the Bench are Justices J Chelameswar, MB Lokur, Kurian Joseph and AK Goel.

Further, making such opinion public would also embarrass the NJAC members, the Bench remarked. At this, the AG said the government could exempt such opinion from the RTI Act or the SC could take it out of the transparency law.

The Bench said this would defeat the very purpose of NJAC aimed at replacing the 22-year-old collegium system of appointing judges which had been dubbed as opaque by the government and others opposed to it.

Rohatgi, however, said the element of transparency would rather discourage persons with doubtful integrity from applying for the post of judges.

The five judges also raised their apprehensions over the procedure for the appointment of two eminent persons and lack of clarity for their removal, if necessary. Rohatgi said the PM-CJI-LoP panel could remove any eminent persons found unsuitable after the appointment, but the Bench said since the Constitution had provided for their position it would not be proper to keep their removal so easy.

The AG said these were matters of procedure which could be sorted out once the NJAC started functioning. NJAC has been a non-starter as CJI HL Dattu has chosen to stay away from it till the PILs were disposed of by the SC.

During his day-long arguments on a batch of PILs, for and against NJAC, the AG strongly defended the provision to have eminent persons on the appointments’ panel. Even the committee that drafted the Constitution under the leadership of BR Ambedkar had representatives from various walks of life, including the civil services and industry.

Several democracies across the globe had also moved away from the practice of letting judges appoint judges and as such India should not continue to remain removed far from reality and aspirations of the people to have a transparent procedure. Having borrowed its Constitution from other democracies, India could not choose to stay away on this aspect.

The SC had upheld the composition of consumer commissions where non-legal members outnumbered the judges on the Bench and wielded same weight, and as such could even over-rule the findings of the judges on the Bench while adjudicating cases. In the NJAC, the eminent persons would bring variety to the table and serve as people’s voice, he pleaded.

Box

Bringing NJAC under RTI

Attorney General Mukul Rohatgi contented the transparency being brought in by placing NJAC under the RTI Act would ensure only competent candidates were appointed as judges

The SC said it would be impossible to ensure total transparency in appointments since this would prevent panel members from expressing their ‘honest opinion’

The Bench said disclosing NJAC members’ opinion under the RTI would ruin the practice of lawyers rejected for the post of judges

The AG said the government could exempt such opinion from the RTI Act or the SC could take it out of the transparency law. The Bench said this would defeat the very purpose of NJAC