NEW DELHI: The Supreme Court Bar Association (SCBA) on Tuesday submitted before the Supreme Court that if it were to strike down the NJAC, then it would result in the automatic resurrection of the Collegium System followed earlier.
“I disagree with the government that the invalidation of the NJAC would not result in the restoration of the Collegium System,” SCBA president Dushyant Dave told the Constitution Bench.
In the event of the court striking down the Constitution’s 99th Amendment paving the way for the National Judicial Appointments Commission (NJAC) and the NJAC Act, 2014, Dave said that 1993 Second Judges Case verdict and 1998 opinion on Presidential Reference would again decide the appointment of Judges to the apex court and the High Courts. “That is the law if the NJAC goes,” Dave told the Bench hearing the petitions challenging the Constitutional validity of the Constitutional Amendment Act and the NJAC Act.
The stand of the SCBA is contrary to the government’s, which had said that if the NJAC were to be struck down, Parliament would step in to deal with the situation. Defending the NJAC, Dave told the court that if the method of selection and appointment of judges did not go against the Constitution, then its actual implementation must be experienced instead of deciding its validity on conjectures and apprehensions. He said that though the independence of the judiciary was the part of the basic structure of the Constitution, then the Parliamentary democracy too was a part and stood on a higher pedestal.
Senior counsel T R Andhyarujina, appearing for Maharashtra, said, “Independence of judges does not come from who appoints them but from the character of the individuals so appointed.” At this, Justice Khehar said, “What is the accountability now? It is a matter of perception. You find a person good and he turns out to be bad.”
Andhyarujina said that under Collegium System, there was no diversity unlike the NJAC as he told the court that so far only six women, and two SC judges have been elevated to the apex court with an insignificant ST representation.
Defending the presence of two eminent persons on the NJAC, Andhyarujina said that they would not be cricketer Sachin Tendulkar or music director Zubin Mehta, but people who have knowledge and background of the working of the judiciary.
Senior counsel Ravindra Shrivastava appearing for Chhattisgarh also defended the presence of eminent people on NJAC as it “is assumed that eminent persons will act independently rather than colluding and colliding with other members.”
