Even as the Supreme Court on Friday junked the constitution's 99th amendment and the NJAC Act, Justice J. Chelameswar however said to hold that executive (government) should be excluded from the process of appointing judges would be "wholly illogical and inconsistent"."To wholly eliminate the executive from the process of selection would be inconsistent with the foundational premise that government in a democracy is by chosen representatives of the people," Justice Chelameswar said in his separate and dissenting judgement.
"Under the scheme of our constitution, the executive is chartered clear authority to administer critical areas such as defence of the realm, internal security, maintenance of public order, taxation, management of fiscal policies and a host of other aspects, touching every aspect of the administration of the nation and lives of its people. "In this context, to hold that it should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy," he said in his separate judgement.
Such exclusion has no parallel in any other democracy whose models were examined by the constituent assembly and none other were brought to our notice either, he said."Established principles of constitutional government, practices in other democratic constitutional arrangements and the fact that the constituent assembly provided a role for the executive clearly prohibit the inference that executive participation in the selection process abrogates a basic feature," he said, adding Attorney General Mukul Rohatgi was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances - a fundamental principle in constitutional theory.He further said that transparency is a "vital factor" in constitutional governance.
"This court in innumerable cases noted that constitutionalism demands rationality in every sphere of state action. Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks," he said, upholding the 99th amendment but found flaws in the National Judicial Appointments Commission (NJAC) Act 2014.Among this was a concern that there could be bipartisan compromise between the party in power and the opposition, resulting in sharing the two slots earmarked for eminent people.
"Such possibility would eventually enable political parties to make appointments purely on political considerations, thereby destroying independence of judiciary," he said.Noting all power could be misused including judicial power, he said that the power to nominate two eminent persons is conferred upon three high constitutional functionaries - the prime minister, the leader of the opposition and the chief justice of India.
Though "it is elementary political knowledge that the prime minister and the leader of opposition would always have conflicting political interests and would rarely agree upon any issue," he said that the possibility of a bipartisan compromise cannot be ruled out. "Though, the presence of CJI in the committee should normally be a strong deterrent, the possibility of the CJI failing to perceive a political compromise or helplessness in the event of such compromise, cannot be ruled out," he said.