The Supreme Court said on Thursday the rejection of an aspirant for appointment as a judge on the grounds of doubtful credentials could be disastrous with the NJAC coming in the ambit of the defamation law.
The court expressed its misgiving saying that it would be difficult to give an "honest opinion" as NJAC, being a public body and covered under the Right to Information law, its proceedings would go public.
"If somebody is of doubtful credentials he can apply (for appointment as a judge) but you can't write it. Otherwise you will be hauled up," said the constitution bench of Justices Jagdish Singh Khehar, justice J Chelameswar, Justice Madan B Lokur, justice Kurian Joseph and justice Adarsh Kumar Goel.
The court expressed its misgivings in the course of arguments by Attorney General Mukul Rohatgi, who focusing on the transparency in the appointment process of judges through NJAC, said that the commission was a public authority covered under the Right to Information Act, 2005.
The court said that it would have a disastrous consequences for a person both ways - if not appointed as a judge or even if appointed, as the stigma would haunt him.
It noted that if a recommendation or application of a person is rejected on the grounds of person having "shady character" and it travels to public through RTI, then it would become a matter of defamation.
It would create a situation where you can't give an honest opinion, the bench observed.
In an attempt to address the misgivings, Rohatgi said let such a person not apply for the judge's job or there would be checks on the person writing the (NJAC) report so that he uses a temperate language.
However, his suggestion to put the NJAC under RTI Act's section 8 that provides for exemption from disclosure of information did not find favour with the court. "That you can't do because your object is transparency," said as Justice Khehar.
Finding himself in a Catch-22 situation, the attorney general said: "Someone has to suffer for a larger good. There will be protection for public institutions."
Defending the provision for the presence of two eminent persons on the NJAC including one from women, weaker sections, SC/ST and minorities, he advocated greater representation of women on the benches of higher judiciary keeping in view their increasing presence in the bar.
As one judge on the bench suggested "why not have some number for women representation in the higher judiciary", Rohatgi, calling for more "sensitisation" over the issue, said: "It will come when it comes to parliament", in a reference to a long-pending bill on giving 33 percent reservation to women in legislatures.
Trying to scotch apprehension that the two eminent persons, without any rooting in judiciary, would in no way contribute to the appointment of good judges, Rohatgi said that they represented the will and confidence of the people and would also act as a "check and balance" on other members.
Giving the example of the constituent assembly whose members hailed from diverse sections of society, he said: "It is not that a person who have nothing to do with the law can't contribute to the drafting of law."
To the court's query, he reiterated that that the two eminent people need not be jurists.
But the court remained unconvinced with the bench saying: "Eminent person will judge that he is a good lawyer but he will not make a good judge but another person, not so good a lawyer, would be an excellent judge."