The Supreme Court today expressed its misgiving on opening the entire process of appointments to the higher judiciary to public scrutiny, saying that words like “transparency” and “criteria” sound good but have their pitfalls.

Noting that transparency could be there to a “certain degree”, the court in a poser asked that even if it is known that a person under consideration for appointment for judgeship is casteist, communal, dishonest and misleads, how can it be proved.

“How are you going to prove that a person is casteist? He is a communal? He misleads or is dishonest,” asked the constitution bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel which is hearing challenge to the constitutional validity of the National Judicial Appointment Commission.

Saying that an expression of an honest opinion would have its consequences both for the person who has been adversely commented upon and the one who has given the opinion, Justice Khehar, who heads the bench, observed: “It may result in litigation. Who will make the comments, who will pour his mind?”

“Can you put an opinion in public when it opens up a candidate (for judgeship) to public ridicule? Hundreds of litigations will then start,” he said. “We can be transparent to certain degree but not to the world at large.”

Justice Khehar recalled an instance where his views about a person under consideration for appointment as judge were carried by a national newspaper on the front page. Though that person eventually become the judge but the incident had its pitfalls, he said.

Senior counsel Fali Nariman, who has argued against the NJAC, agreed with Justice Khehar that inviting applications and making criteria a basis of appointment sounds “wonderful” but poses difficulties.

Pointing to the pitfalls, Nariman said: “One may say Nariman is not good enough to be a judge, but (Soli) Sorabjee is. Transparency is all too well to say. But what will happen to the practice (as lawyer) of the person rejected.”

The court said this in the course of submission of senior counsel Ram Jethmalani who advocated a transparent procedure in judges’ appointment.

Jethmalani, who had appeared for one of the petitioners, cited the British procedure where applications are invited for the appointment of judges and those who don’t succeed have the right to know reasons.

The Supreme Court is hearing a batch of petitions including by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others challenging the constitutional validity of the constitution’s Ninety Nine Amendment Act, 2014 and NJAC Act, 2014.

Appearing for Madras Bar association, senior counsel Arvind Dattar urged the court to strike down Section 13 of the NJAC Act, 2014, which provides for parliamentary approval for modification of the rules and regulations that would be framed by the NJAC putting in place the procedure and criteria for appointment of judges.

He contended parliament could not transfer a constitutional power to a statute which could be turned upside down by a simple majority and offend the independence of judiciary.

Appearing for SCAORA, Nariman reiterated his support for the Judicial Appointment Commission as suggested by the former chief justice of India MN Venkatachaliah who headed the Commission to Review the Working of the Constitution.