Should judges appoint judges? Who stands where

  • HT Correspondent, Hindustan Times, New Delhi
  • Updated: Oct 17, 2015 11:33 IST
The judges of the Supreme Court -- except for one dissenting order -- were firm that the NJAC would have increased the executive branch’s power over the selection of judges. And that, according to them, was unconstitutional. (HT Photo)

As details of the Supreme Court’s landmark judgment quashing the National Judicial Appointments Commission came in, reactions were sharply divided. The government said it was a blow to parliamentary sovereignty and that the NJAC was the outcome of years of collective wisdom from within both the legislature and judiciary. Opposition parties which had earlier backed the appointment said it implicitly showed the lack of confidence in the government. Activists hailed it as an affirmation of the independence of the judiciary.

The judges of the Supreme Court -- except for one dissenting order -- were firm that the NJAC would have increased the executive branch’s power over the selection of judges. And that, according to them, was unconstitutional.

Read | National Judicial Appointments Commission: All you need to know

So, should judges appoint judges? Or can we trust politicians to appoint judges. As the government mulls its next course of action, and the SC gets ready to consider means to make the existing collegium system more transparent, let’s take a look at who stands were:

Justice JS Khehar: It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance.

Justice Kurian Joseph: If the alignment of tectonic plates on distribution of powers is disturbed, it will quake the constitution. Once the constitutional structure is shaken, democracy collapses.

Justice MB Lokur: How is the NJAC expected to perform its duties? Will there be any transparency in the working of the NJAC and if so to what extent? Will privacy concerns of the ‘candidates’ be taken care of? Will issues of accountability of the NJAC be addressed.

Read | Collegium system opaque, needs improvement: 2 judges hearing NJAC case

Justice AK Goel: Appointment of judges of the Supreme Court and appointment/transfer of judges of the high courts, can certainly be influenced to a great extent by the Law Minister and two nominated members, thereby affecting the independence of judiciary.

Justice Jasti Chelameswar : To wholly eliminate the executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people...Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.

Sadananda Gowda( law minister): We brought the will of the people. 100% of the Rajya Sabha and Lok Sabha have supported the bill. Voters who have voted...are represented by Parliament members. 20 state legislatures have supported the bill.

Ravi Shankar Prasad ( communications minister) : Various commissions headed by eminent judges, including Administrative Reforms Commission and different parliamentary committees had recommended NJAC. Even former chief justice JS Verma had publicly raised misgivings on the working of the collegium system and had suggested a serious think.

Kapil Sibal ( former law minister): It was an attempt to have inroads into the judiciary. Just like the CBI, which from a caged parrot has become a captive parrot, the government wanted the judiciary to become captive judiciary.

Mukul Rohatgi ( attorney general): Appointments will continue to be made in an opaque system where all the stakeholders will not have their voice.

Anil Dhawan ( petitioner) As petitioners we argued that the collegium system had shortcomings. But, NJAC was even worse.

Harish Salve (senior lawyer): Nowhere in the world judges appoint judges. It is not their job and, therefore, they cannot do what they want to now.

Abhishek Manu Singhvi (senior lawyer): I am not surprised. Having enjoyed this self-procreation power for decades, I had predicted, it would have been unlikely for the judiciary to lose it. Having tried the two systems of appointment (first by the executive and then judiciary) I believe the new NJAC should have been given a fair chance.

Ranjeet Singh Surjewala (Congress spokesperson): Independence of judiciary is a key fundamental of our democracy. There can be no compromise on the same. The NJAC judgment implicitly reflects lack of confidence in the government which has eroded institutional autonomy and constitutional safeguards over the last 17 months.

Arvind Kejriwal (Delhi chief minister) : NJAC judgement is landmark. SC has thwarted govt’s attempt to control judiciary.

Read | Centre ‘surprised’ over SC order striking down NJAC , AAP hails it

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