Law minister's presence in NJAC can influence others: SC

The Supreme Court on Friday held that presence of union law minister in the NJAC would be deprimental as he can influence the decision of other members and it would be "inappropriate" for him to be a part of the decision-making process in appointment of judges.

"The presence of the law minister in the NJAC casts a doubt on the principle of cabinet responsibility," said Justice Madan B. Lokur, while agreeing with Justice Jagdish Singh Khehar, Justice Kurian Joseph and Justice Adarsh Kumar Goel to strike down the constitution's 99th amendment and the NJAC Act.

He held the law minister's presence in the NJAC "totally unnecessary and ill-advised".

The constitution's 99th amendment making provision for the National Judicial Appointments Commission (NJAC) were brought to replace the 1993 collegium system for the appointment of judges to the Supreme Court and high courts.

In the judgement, Justice Lokur said it is true that inputs from the executive are important in the process of taking a decision of appointing a person as a high court or Supreme Court judge or not but "providing inputs by the executive is quite different from the process of taking a decision by the executive or the executive being involved in the process of taking a decision".

"While it must be acknowledged that the law minister is only one of six in the NJAC but being a cabinet minister representing the entire cabinet and the government of India in the NJAC, the law minister is undoubtedly a very important and politically powerful figure whose views can, potentially, have a major impact on the views that other members of the NJAC may hold."

"Since the law minister is, by virtue of the office held, potentially capable of influencing the decision of a member of the NJAC, it would be inappropriate for the law minister to be a part of the decision taking process. The selection process must not only be fair but must appear to be fair."

Justice Lokur also said that "independence of the judiciary is vital to democracy" and there ought to be a "separation between the executive and the judiciary" and that such independence of the judiciary begins with the appointment.

"It must be appreciated and acknowledged that methodological independence, namely, the recommendation and appointment of judges to a superior court is an important facet of the independence of the judiciary. If a person of doubtful ability or integrity is appointed as a judge, there is a probability of his/her succumbing to internal or external pressure and delivering a tainted verdict," he said.

Appointment of people with doubtful integrity, Justice Lokur said, "will strike at the root of the independence of the judiciary and destroy the faith of the common person in fair justice delivery".

"Therefore, there is a great obligation and responsibility on all constitutional functionaries, including the chief justice of India and the president, to ensure that not only are deserving persons appointed as judges, but that deserving persons are not denied appointment."

Since justice delivery is undoubtedly the responsibility of the judiciary, therefore, the judiciary (symbolized as it were by the CJI) is obliged to ensure that only the most deserving are considered for appointment as judges, Justice Lokur opined.

He said that there is a need to have a "consequence hearing" for steps to be taken in the future to streamline the process and procedure of appointment of judges to make it "more transparent and in tune with societal needs".