Striking down NJAC flawed: Former AG

NEW DELHI: The 2015 Supreme Court judgment striking down the National Judicial Appointments Commission (NJAC) — a body conceived by the Narendra Modi government for appointing judges to the Supreme Court and high courts -- is flawed and goes against the will of the people and the Constitutional mandate, senior counsel and former attorney general (AG) Mukul Rohatgi said on Saturday.

Rohatgi, who argued the case on NJAC for the central government when he was AG, said the constitution empowers the President of India to appoint judges of the Supreme Court and high courts in consultation with the Chief Justice of India (CJI). But the Supreme Court interpreted the word “consultation” in the Constitution to mean “concurrence’ so as to give primacy to the CJI when it comes to judicial appointments, he said.

“How can the line ‘President shall appoint a judge of Supreme Court in consultation with CJI’ mean ‘concurrence with CJI’? Dr.{bhim Rao} Ambedkar would be turning in his grave (at the Supreme Court’s interpretation)”, Rohatgi said at a webinar, where he spoke on former Union minister late Arun Jaitley’s perspectives on justice dispensation and expectations of the judiciary.

The NJAC, which was the brainchild of Jaitley, had sought to replace the Collegium system of appointing judges.

The Collegium is a body of five senior-most judges of the Supreme Court which recommends the names of candidates for appointment as judges of the Supreme Court and high court. The names recommended by the Collegium are binding on the central government.

The collegiums system itself was introduced by the Supreme Court through its 1993 judgment in the second judges case in which it held that the power to appoint judges is vested with the CJI and the central government cannot appoint a person as judge without the concurrence of the CJI and the four senior-most judges of the Supreme Court. This body of judges came to be called the Collegium – a system in which judges appoint judges.

After the Modi government came to power in 2014, one of the first changes it brought to the Constitution was to include a new Article providing for the NJAC, a body comprised of representatives of the government and judiciary to appoint judges.

Rohatgi also expressed hope that the Supreme Court would realize its mistake and overturn its 2015 judgment.