Keep government out of appointment to higher judiciary, SC told

The Supreme Court was on Tuesday told that the entire country was suffering on account of bad politics by bad politicians, who should thus have no voice in the higher judicial appointments.

"We are suffering from bad politics and we are suffering from bad politicians. Whole political class is under cloud and should be kept out from the appointment of judges," senior counsel Ram Jethmalani told the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel hearing challenge to the National Judicial Appointment Commission's constitutional validity.

The panel has the union law minster as one of the six members.

"This evil is avoidable and we must keep this evil out," he said.

Holding that the appointment of judges was a "paramount part" of the independence of judiciary, Jethmalani, appearing for one of the petitioners, argued that "If you start (the appointment process) fraudently the then judiciary will die".

Terming the submission by Attorney General Mukul Rohatgi "wholly wrong in thinking that the independence (of judiciary) is a qualification (that comes into play) only after the appointment (of judges)", he said that the law minister is a member of the cabinet and he should not be in the NJAC as "he has possess economic and political assets and thus has a tremendous capacity to corrupt people provided he corrupts himself."

Earlier in the course of the arguments, senior counsel Anil Divan appearing for the Bar Association of India (BAI) referred to the constitutional convention of appointing the senior most judge as the Chief Justice of India saying that it has become an "essential and non-negotiable for maintain the independence of judiciary".

Referring to the government stand that eligibility and suitability are different criteria, he wondered what government meant by the latter that will play independently in appointment of judges.

"Does it mean suitability to the executive and suitability not to the independence of judiciary and rule of law," he asked.

Divan urged the court that all the criteria should be incorporated in the constitution and not in the NJAC Act, 2014 which can be amended by the parliament by a simple majority.

He said that if tomorrow, the government was to get the NJAC Act amended to provide for a minimum tenure of two years for the Chief Justice of India - which may not be arbitrary - it would ensure that none of seven judges, who would otherwise, on account of seniority, become the CJI till 2022, would make it to the top post.

At this Justice Khehar observed: "I personally believe that there should be a (fixed) tenure as there was no point in coming and going (the senior-most judge becoming CJI for a short duration)."

As court sought to describe as "conjectures" Divan's apprehensions that the judges may soft paddle their opinions for their future prospects, Divan cited the instances in the past where judges have fallen prey to their "ambitions".

Referring to a particular instance where he said that a judge appeared soft on the government, Divan said: "I am not running him down. This is human. The ambition of becoming the CJI can fail best of the people. It is a human failing. It is not a conjectures. It is a reality."

Hearing will continue on Wednesday with Jethmalani addressing the court.