Powers of CJI a responsibility, a pain: SC

The Supreme Court on Wednesday said the projected power of the chief justice of India was in fact a responsibility, a pain, that he has to discharge in the name of the country.

"You have to deal with it. It is not a power. It is a pain. It is a responsibility that you (CJI) discharges in the name of the country," said the constitution bench of Justice J.S.Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Goel.

The remark came as senior counsel and former additional solicitor general Bishwajit Bhattacharyya, while referring to various constitutional provisions that mandates consultation with the CJI for making judicial appointments, said that they stood denuded under the new NJAC regime where he has to share his powers with five other members including the law minister.

The court told Bhattacharyya that while addressing the issue he should refrain from making comparison between the collegium system and the NJAC as the latter has to be tested on its constitutionality in context of independence of judiciary.

"That is the fallacy. You can't compared the two systems. You may say that therein a totals loss of power (of the CJI)", the court said, adding: "You need an independent system. CJI does not matter. The question is 'Is it independent?' You can say minus CJI, it is not independent. Make a system which infuses independence. The system should be independent."

Before Bhattacharyya, senior counsel Arvind Datar appearing for the Service Bar Association of Madras High Court, raised some question about the two eminent people who would be nominated by a committee comprising the prime minister, leader of opposition and the CJI, their veto power, quorum of the NJAC meeting, and twist and turns it may take.

Noting that there were 70 statues where there is provision of eminent people and in 67 of them, their qualification is given in the context of the object of the statues, he contended that in case of NJAC, it has been deliberately not spelt.

As Attorney General Mukul Rohatgi sought to brush aside the question, saying that entire argument was based on distrust that there may be a meeting of NJAC minus judicial members or the CJI, the court said: "The law is based on distrust (towards collegium system). This is why NJAC."

"Idea behind the written constitution is that no one can be trusted in the governing of the people," it observed.

As the attorney general said that somewhere you have to trust, the court, reiterating its earlier question, asked him to name a eminent person who could be nominated to the NJAC.

As Rohatgi gave the name of agricultural scientist M.S.Swaminathan which had been suggested earlier in the hearing, the court asked him how could he know which is the district judge or a senior lawyer in Assam who could be appointed as a high court judge.

As Rohatgi sought to cite the experience of other countries including Britain where the heads of the judicial appointment commission is a layman, the court said: "Don't turn the question. At the moment you don't have a name (to suggest an eminent person)."