NJAC is ill conceived, says senior lawyer Datar

New Delhi: The composition of the National Judicial Appointments Commission (NJAC) is ill-conceived and will not result in the proper appointment of judges of the Supreme Court and the High Court, argued senior advocate Arvin Datar in the apex court on Thursday.

He said “Article 124C of the Constitution (providing for NJAC) destroys the constitutional identity as well as the constitutional scheme and framework whereby the appointment of Supreme Court, High Court and the District Judges is not subject to any parliamentary or delegated legislation.

He made this submissions before a five-judge Constitution Bench comprising Justices J.S. Khehar, J. Chelameswar, Madan Lokur, Kurian Joseph and A.K. Goel, hearing a batch of petitions challenging the validity of the National Judicial Appointments Commission law.

He said “if a judicial commission has to be created, its composition, eligibility criteria and matter of appointment will have to be laid down in the Constitution itself. If it is part of ordinary legislation or delegated legislation, the entire appointment process will depend on the whims and fancies of the Government in power, whether having absolute majority or a coalition.

The power of appointment of Supreme Court and High Court Judges was always intended to be in the Constitution itself.  The framers of the Constitution never intended that the appointment could be subjected to ordinary laws or delegated legislation.

When counsel argued that the composition of six members with the presence of the Law minister and two eminent persons would result in conflict of interest, Justice Khehar asked the counsel “we were wondering as to why none of the counsel on either side talked about the possibility of conflict of interest and bias on the part of three judges (including the Chief Justice) in the NJAC.”