Apex court questions Centre over limiting Prez power in NJAC Act

The Supreme Court on Friday questioned the Centre over bringing in a new law for appointment of judges, saying that the National Judicial Appointments Commission (NJAC) can also falter in its task as the President’s power has been circumscribed under it.

The five-judge Constitution bench presided over by Justice J S Khehar said the NJAC would also have to rely upon available materials as was being done so far by the collegium system replaced by the amendment to the Constitution.

“The point is not who selects the judges; a collegium or NJAC or some other body. Selection is to be made on the basis of available material in any system and hence anybody can make mistake. One of the most important questions that will arise in any system would be who can judge the potential of the candidates better,” the bench said.

The government has accused the SC-created collegium of taking away the President’s power to appoint judges through its judgements in the Second Judge’s Case.

The apex court, by its judgment in 1993, had established a collegium, giving primacy to the Chief Justice of India for appointing judges to the higher judiciary.

“Power of the President is completely circumscribed under the NJAC. The NJAC Act says he “shall” accept the recommendations made by the Commission. So, the President has to mandatorily accept such recommendations. And you keep arguing that collegium was bad since it circumscribed the President’s power,” the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel said.

If the collegium was to be criticised for reportedly curtailing the President’s power in appointing judges, NJAC was no better, the bench added.

The court was hearing arguments on the point being agitated by Attorney General Mukul Rohatgi as well as other counsel, representing a state government, for referring the matter relating to legality of the NJAC Act to larger bench of either nine judges or 11 judges. The court would resume hearing on Monday.