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SC faces perhaps hardest decision of its life as it reserves NJAC verdict

The Supreme Court on Wednesday reserved its judgment on a batch of petitions challenging the constitutional validity of National Judicial Appointment Commission (NJAC) and extended its interim order protecting services of the additional judges till the verdict is pronounced

A constitution bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel, by their May 12 order, had protected services of additional judges whose two year term was ending during the hearing of the challenge to the NJAC for the appointment of judges to higher judiciary.

A batch of petitions including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others had challenged the constitutional validity of the constitutional amendment act and the the act setting up the NJAC

Drawing the attention of the court to additional judges, senior counsel Fali Nariman appearing for SCAORA told the court that in July, 12 would retire in various high courts, nine in August and another 14 in September.

The apex court’s May 12 order had said: “As an interim measure, we direct the appointment of additional judges in high courts, already in office, to be continued for a period of three months or till the date of their superannuation, whichever is earlier, during the pendency of the matters in hand, till their disposal.”

Appearing for the central government, Attorney General Mukul Rohatgi on Wednesday defended the provisions of the NJAC Act, 2014 and the provision of two eminent people being in the NJAC besides the CJI, two other senior most apex court judges and the union law minister.

Contending that the wisdom of selecting best people for the higher judiciary did not rest with judges alone, Rohatgi said that even other sections of society too possessed wisdom and it was their presence in the NJAC that would bring diversity in the selection.

Criticising a “too technical” approach in selecting judges, he noted the havoc such an approach played in the functioning of consumer courts, tribunals and arbitration. He said that what were supposed to be a qusai-judicial bodies are functioning like regular courts.

Flaying technical approach in judicial appointment, Rohatgi said, “It has destroyed the concept of arbitration. Arbitration proceedings extending to 50 to 65 sittings has become a norm. It was expected that arbitration would conclude in five to six sittings.”

“Why does it happens in this country. Why not in other parts of the world. I have done arbitration in other countersues and jurisdictions.”

He contended that because of an over technical approach, the entire system of court working including procedure has been transported to tribunals and arbitration and “consumer courts have been reduced to another judicial forum”.

Besides other issues, the three questions that may be addressed in the verdict are whether appointment of judges formed a part of the independence of judiciary - which in turn is one of the features of the basic structure of the constitution and whether judiciary had any primacy in the appointment of judges.

Other question that got focused during the hearing that was spread over more than three months was the provision providing for veto by any two members of the NJAC to sink a proposal and the criteria and role of two eminent people in the NJAC

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