Our Legal Correspondent

The Supreme Court

New Delhi, April 29: Would the late nuclear physicist Homi J. Bhabha have qualified to sit on the National Judicial Appointments Commission, the Supreme Court asked the Centre today, insisting that it list the criteria for selection of two “eminent persons” who would be part of the panel.

A five-judge constitution bench is dealing with writ petitions challenging the validity of the NJAC Act.

Senior lawyer Arvind Datar, appearing for the Sales Tax Bar Association, argued that the expression “two eminent persons” in the commission that will appoint and transfer judges to the Supreme Court and high courts was vaguely worded and that any known name such as Amitabh Bachchan, the Ambanis or Lata Mangeshkar could fit the bill.

Justice J.S. Khehar, heading the bench, asked the attorney general to respond. Mukul Rohatgi said: “We had done some homework. We have appointed a secretariat. We will be coming out with the rules and regulations.”

But the bench asked: “What is the criteria for eminent persons?”

Rohatgi merely said: “I will check the regulations.”

Justice Khehar said: “Let us assume the term eminent persons had a nexus to the act. But please make a suggestion even if it is hypothetical. Tell us here is an eminent person we want to have in the commission…. How will he be able to find out which particular district judge, or say an advocate, or somebody practising in Srinagar is fit for appointment as a judge. Tell us, Mr Rohatgi.”

The attorney general did not respond.

Justice Khehar insisted that Rohatgi must give at least one hypothetical name.

Rohatgi said he would not name any person at this stage.

Datar interjected to say the name of some dead eminent persons could be taken for consideration hypothetically, and named Bhabha.

Justice Khehar agreed and asked: “How would Homi Bhabha know somebody in Punjab and recommend or give views on a name for appointment? How will he know a particular judge or lawyer from Assam or some other place is fit for appointment?”

Rohatgi stayed silent, but Justice Khehar kept prodding him for a name. Rohatgi then referred to agriculture scientist M.S. Swaminathan.

The bench then asked: “How would Mr M.S. Swaminathan know about somebody practising in Patiala (Delhi) courts, because he is from Tamil Nadu?”

The attorney general said Swaminathan would get the necessary information through a secretariat established by the NJAC.

But the bench said such inputs would be second-hand information. “They have the power of veto, whether they have the information or not,” Justice Kurien Joseph said.

The bench pointed out that the NJAC does not specify a quorum and that according to the act, even if there is a vacancy on the panel, it can still make appointments. “So even if three judges are not there, then the law minister and two eminent persons can make the appointment?” it asked.

Rohatgi replied that the rules are yet to be framed fully.

Senior lawyer Ram Jethmalani, appearing for an individual petitioner, started his arguments at the fag end of the day’s hearing. He said: “Any politician shall not be involved in the process of selection of judges….”

The act must be struck down, he said, because “if one politician drowns in a river, it is pollution, but if all the politicians drown, then it is a solution”. The argument brought some mirth.

The arguments will resume on Thursday.