New Delhi: The Supreme Court on Wednesday reserved its verdict on petitions challenging the validity of the law to set up the National Judicial Appointments Commission (NJAC) to select judges to higher courts and a related constitutional amendment.

The constitution bench of judges J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel has heard the case for more than four weeks, including arguments from several legal luminaries.

The case pitted the judiciary’s need for control over the process of appointing judges to higher courts against the executive’s emphasis on the need for diversity in the selection of judges. Doubts about the NJAC undermining the independence of the judiciary, dilution of primacy of the judiciary, the quorum of the commission and the role and power of “eminent persons" in the NJAC were fiercely debated by both the judiciary and the executive.

On Wednesday, the last day of the arguments, attorney general Mukul Rohatgi told the court that the only question the court needed to consider was whether the NJAC, the replacement for the collegium system, would “topple the structure of the independence of judiciary".

Rohatgi said the NJAC would be more transparent, with safeguards under the Right to Information Act, so that anyone could find out how many people applied for a job, who were considered and so on.

In contrast, the minutes of a collegium “revealed nothing". He said the NJAC will ensure diversity and public participation.

But the petitioners, led by the Supreme Court Advocates-on-record Association, claimed that the constitutional amendment replacing the primacy of the Chief Justice of India (CJI) with the NJAC affects the independence of the judiciary.

The government on 13 April notified the National Judicial Appointments Commission (NJAC) Act, 2014, and the related constitutional amendment, ending the nearly 22-year-old practice of a small group—or collegium—of judges appointing other judges to higher courts. Under the collegium system, five seniormost judges of the apex court appointed other judges.

The NJAC as envisaged will comprise six members—three Supreme Court judges including the CJI, the Union law minister and two “eminent persons" to be chosen by the CJI, prime minister and the leader of the opposition in the Lok Sabha or leader of the largest opposition party in the Lok Sabha.

The court reserved its judgement after Rohatgi concluded his arguments in favour of the NJAC.

“In my opinion, it would be good to give the outside world a say and a platform to voice their opinion. We live in a fast-paced society that has met with the globalized world in every aspect. This would serve as a good platform to help us as a country to experience a different system," said Rajiv Khanna, director of the faculty of law, SGT University, Gurgaon.

“It is unlikely that the judiciary would let go of their control... They might however make a change in their present appointment system of the top five judges," said Rahul Singh, professor at the National Law School of India University, Bengaluru.

Close