Centre claims judges appointment an executive function

The Centre on Monday told the Supreme Court that the appointment of judges in the higher judiciary was an executive function under the Constitution and the role of the President was mere ceremonial, confined to issuing warrants only.

Resuming arguments in defence of the National Judicial Appointment Commission (NJAC), Attorney General Mukul Rohatgi submitted before a five-judge Constitution bench presided over by Justice J S Khehar that the appointment in reality was made by the Council of Ministers headed by the Prime Minister.

According to the recent Constitutional Amendments, a six-member body (NJAC) to be headed by the CJI would make recommendation to the President for the purpose. The panel would comprise two senior-most judges, Union Law Minister and two eminent persons.

The bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and A K Goel, asked him to explain the role of the President in the process of appointing judges as the amendment had done away with the provision of “consultation” with the judges. The court was hearing a batch of PILs challenging Constitutional validity of the NJAC Act.

Rohatgi responded by saying that the consultation was in strict sense with the executive. He further said that the President cannot have independent consultation with the judges.

But the Bench said the President’s obligation to act on the aid and advise of the Council of Ministers was perhaps confined to discharge of executive functions whereas appointment of judges cannot be said to be an executive function.
The AG said that this was the situation before 1992-93 when the apex court gave itself the power to appoint judges through Collegium. He said appointing judges can never be a judicial function. “The Constitution-framers had never thought judges will appoint judges,” he said.

He said, “The Parliament in its wisdom would be the best judge of when the Constitution would require to be amended to answer to the needs of the citizenry and its wisdom cannot be questioned by this court. Functionaries like the Prime Minister and Law Minister cannot be viewed with suspicion. I am a judge and so I know the best about who should be appointed cannot be the norm anymore.”
He said that there was a need to change the system.