BackTug of war over independence of judiciary
Govt and a bench hearing a case on how judges are appointed cross swords with Mukul Rohatgi insisting that there is no 'primacy' of the judiciary
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New Delhi: The government and a bench hearing a case on how judges are appointed crossed swords on Tuesday with attorney general Mukul Rohatgi insisting that there is no “primacy" of the judiciary.
The bench is hearing cases related to the National Judicial Appointments Commission (NJAC) Act and a related constitutional amendment which the centre recently notified. The Act seeks to change the way judges are appointed, moving away from the traditional collegium system (where judges appoint other judges to the commission).
The government’s approach to the case has been to ask the five-judge constitution bench hearing the case to refer the matter to a larger bench, as, in 1993 and 1998, nine-judge constitution benches of the court had upheld the collegium system.
The bench headed by justice J.S. Khehar, however, asked Rohatgi to focus on proving that the NJAC was independent. “Why don’t you want to show that this process (NJAC) is equally independent?" he asked.
The bench told Rohatgi that the centre had previously accepted the court’s ruling that there was primacy of the judiciary and could not go back now. Contesting this by saying that there could be no bar to raising a challenge on the veracity of a decision, Rohatgi said the decision had happened nearly 20 years ago and was open to being questioned. He also said that under the earlier provision for appointments of judges, the chief justice’s recommendation for judicial appointments was not binding on the President.
Justice Khehar said, “Stakeholders shouldn’t participate in the process of selection. That’s the independence." He pointed out that the centre is an important stakeholder in the litigation.
Rohatgi maintained that there was “no absolute power" given to any one arm of the government: the executive or judiciary.
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