NEW DELHI: Appointment of judges shouldn’t be the exclusive preserve of the judiciary and civil society must be allowed to participate in the selection process as the “largest consumer of justice”, the Centre told the Supreme Court on Thursday while justifying the role of two eminent persons in the National Judicial Appointments Commission ( NJAC ).

Appearing before a 5-judge Constitution bench, headed by Justice JS Khehar, attorney general Mukul Rohatgi said the times have changed and legal acumen cannot be considered the sole criteria for appointment of judges. Describing NJAC as a broad-based system than the collegium, he said the two eminent persons would bring in “diversified views” in the appointment process.

“People outside the judiciary must also have a say in judicial appointments. They are the largest consumer of justice delivery system and must have a say. Appointment of two eminent persons in NJAC is a decision to bring such people on table. What is wrong if a person of the stature of Satyajit Ray, MS Swaminathan, Verghese Kurien, Bill Gates, Steve Jobs or a cricketer or film star are appointed in the panel. They have deeper understanding of society and culture than judges,” the AG said.

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Pointing out that the NJAC Act fails to define “eminent person”, the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, said it is very subjective term and asked what would happen if a ‘B-grade’ film star is appointed as an eminent person. “How can an eminent person decide the suitability of a candidate for judgeship. From whom they would get information and data on the basis of which decision should be taken. How would they help in the selection process?” asked the bench.

The court also raised questions over the lack of provisions for removal of the two eminent persons from the six-member NJAC panel and asked whether there was any scope for judicial review of their selection.

“There are no eligibility criteria for being an eminent person and there is also no provision for their removal from NJAC. Tomorrow if he goes berserk, what will you do. There is a procedure for removal of all persons from Constitutional posts but no such procedure is there (in NJAC) for the eminent person. There must be some checks and balances so that action can be taken if something goes wrong,” the bench observed.

A combative Attorney General replied that the collegium system was too stereotyped and time has come to replace it. “The proposition that only judges know the best is fraught with danger. The court cannot ignore or be oblivious to the changing times. The mindset must change and the court must live up to the requirements of changing times. Our society is very mature. What paths the society should undertake should not be left only to judges,” he said.

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Advancing arguments on the role of the two eminent persons in the panel, Rohatgi said, “Many traits of a person must be considered before appointing him as a judge and those traits can be analysed by a person from outside the legal field. It’s a procedure followed in many countries. Judges are not aware about life beyond law. Why should you feel that only you could do the job,” he argued.

The AG said the questions raised by bench are in vacuum as the NJAC has not started functioning and rules and regulations can be put in place to sort out any problem. He said an eminent person can be removed by the commission itself.

“Are you saying that hire and fire policy will be applied for the eminent person. It looks odd that commission would form rules for removal of its own member,” the bench countered.

The AG said NJAC cannot be quashed just because of few deficiencies.

READ ALSO: CJI recuses from NJAC, govt calls it ‘unconstitutional’

