Seniority not sole criteria for elevation: Attorney General Mukul Rohatgi tells SC

Continuing his arguments before a five-judge Constitution bench comprising Justices J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel, hearing a batch of petitions on the validity of the NJAC, the AG said “the manner in which collegium sends recommendation for appointment or elevation is not worthy of public acceptance.”

Referring to Section 5 (1) of the NJAC Act which says “the commission shall recommend for appointment the senior-most judge of the Supreme Court as the Chief Justice of India if he is considered fit to hold the office”, the AG said though seniority could be considered, other factors like his ability and suitability will also be considered for his elevation to the apex court.

Justice Khehar cautioned the A-G and said “your proposition will lead to disastrous consequences. Each High Court must have a representation in this court and the collegium ensures that by selecting a judge from that High Court. Suppose if we accept your proposition then if a judge is found not suitable, then the particular High Court will go unrepresented. This is against the basic concept of democracy and rule of law.”

Justice Khehar said “your contention that cloning of judges or judges selecting judges should stop would mean that judge’s son or daughter cannot be considered; what you say is even if they are otherwise eligible throw them out.” The A-G pointed out that woman judges did not get fair representation in the apex court as there is only one woman judge at present. Justice Khehar said “if you fix different criterion for men and women judges, it will create problems. There will be dissatisfied judges in the judiciary.”