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New Delhi: The Narendra Modi government on Tuesday told the Supreme Court that the National Judicial Appointment Commission (NJAC) for appointments to higher judiciary had a component of a “hit and trial” experiment for finding the best people for the posts.

Contending that there was an element of uncertainty in every new experiment, Attorney General Mukul Rohatgi told the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel that similarly there was “hit and trial” component in the NJAC.

Urging the court that the NJAC should be given a chance to have its run before being subjected to any critical evaluation, Rohatgi said “God knows” what would eventually emerge from it in terms of selection of judges.

But the court was not convinced.

“Only problem is that we can’t leave it to God. It is not a hit and trial business,” the court told Rohatgi reminding him that it was too serious an issue to be left to “hit and trial” or “God”.

At this, Rohatgi said: “If there could be hit and trial for democracy, hit and trial for secularism, hit and trial for federalism, then why not judiciary. Hit and trial is a part of democracy.”

Attacking the collegium system of appointment as being devoid of “transparency, rules and guidelines and something happening in a closed room away from sunlight”, he however said the blame for the system’s failure lay at the doorsteps of the government, but sought to know if this still prevented the parliament from putting in place a “broad-based, healthier, transparent” NJAC.

At this, the court asked him to give it the names of the people who were “good” and were recommended for appointment to higher judiciary by the government but were not accepted by the collegium.

“Show us one incident, where there was a good material (name recommended). You (government) projected that material and sent it to collegium and it was returned,” it said.

Justice Kurian once again asked Rohatgi to furnish the list of the people recommended by the collegium for appointment but returned by the government for reconsideration and the collegium again reiterated the names.

Its query came while addressing the contention that under the collegium system – also known as judges appointing judges – the government has no voice and there was give and take amongst the judges involving “you scratch my back, I will scratch yours” in a closed room without sunlight.

Referring to an instance where after receiving a positive report on the credentials of a person recommended for appointment as judge by the collegium, the government sought another report from the Intelligence Bureau, the court asked: “What is the question or the occasion (for the government) to ask for the second opinion (of the IB)… we want to know the working of the system.”

“It is a question of the working of a system,” the court told the Attorney General as he reiterated his submission that “once a new system (for judges’ appointment) comes, it is not in the provinces of the judiciary to decide on its validity on the basis of comparison with other models (collegium system)”.

The court is hearing 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 challenging the constitutional validity of the constitution’s Ninety Nine Amendment Act, 2014 and NJAC Act, 2014.


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