'Judicial Appointment Bill has elevated role of judiciary'

Executive reduced to one in six member panel

The National Judicial Appointment Commission (NJAC) Act has elevated the role of judiciary as an active participant in the appointment of judges in the Supreme Court and high courts, while the Constitution has entrusted it the task of consultation only.

The executive which had exclusive say under the Constitution has been reduced to only one member in the six-member NJAC, senior advocate K K Venugopal submitted before the Supreme Court.

Representing Madhya Pradesh, Venugopal supported the Union government before a five-judge Constitution bench hearing a batch of PILs challenging the Constitutional validity of the NJAC Act.

“The judicial wing which had only a consultative status, has now been elevated to that of a participant in the decision making process itself. Out of the six members, three of them belong to the judicial wing, and therefore, the judicial wing has primacy in the matter of appointments. Along with this is included a power of veto which can be exercised if the other members together seek to push through a candidate, who according to the judges is not an appropriate candidate for appointment,” he said.

The mere fact that the executive had a decisive voice in appointment of judges did not deter them from functioning with the greatest of independence during 1950 to 1993 before the advent of the collegium system, the counsel added.

He said, if the issue of basic structure, including independence of judiciary was raised against the 99th amendment bringing in NJAC, it had to be tested on the basis of original Article 124 as enshrined in the Constitution and not against any judgment which through judicial activism sought to substitute a new structure against the existing one.

“No attempt was made by Article 124, as it existed, to ensure independence of the judiciary, in the sense in which it is being now understood, as the Chief Justice of India (CJI) is only a consultee. The present amendment, with the diverse classes represented in the commission, guarantees such independence.

 In other words, where no element in the nature of a pillar of the basic structure represented by the independence of the judiciary ever existed in the original Article 124, today, the present amendment has introduced fully the concept of the independence of the judiciary,” he added.