NEW DELHI: The Centre on Thursday said the judiciary’s primacy in judicial appointments could not be perpetuated, as it yet again underscored the need to refer to a nine-judge Bench the challenge to the validity of the NJAC contending that the issue could not be examined without deliberating on the question of the judiciary’s primacy.
Heated arguments were exchanged between Attorney General Mukul Rohatgi and lawyers appearing for other petitioners challenging the Constitutional validity of the National Judicial Appointments Commission(NJAC) in the Supreme Court.
Senior counsel Fali S Nariman questioned the AG as to why he was laying emphasis on taking the hearing to a larger Bench when the five-judge Bench was entitled to hear the case completely.
On the contrary, senior counsel K K Venugopal, K Parasaran and Ravindra K Srivastava, appearing for various states, which have ratified the new law, favoured the plea of the Centre that the matter be sent to a larger Bench.
Rohatgi stood his ground saying that there was no bar on raising the issue as the other side had repeatedly referred to the nine-judge Bench judgment which according to him suffered from defects. The Centre had submitted that the Collegium System had failed since it was an opaque mechanism which stifled democracy.
During the hearing on Thursday, the Bench asked the AG whether the Centre had been following the Constitutional scheme of consultation in appointing judges to the higher judiciary prior to the introduction of the Collegium System of judges appointing judges. “The question is whether Article 124 (establishment and constitution of Supreme Court) was being adhered to as contemplated,” the Bench asked.
The court also posed a query to the Centre regarding specific instances when the President had been consulting other Supreme Court Judges, besides the Chief Justice of India, in case of a deadlock in the appointment of a judge. “The President must have been consulting other (SC) judges. Let me check it,” Rohatgi said, adding, “I don’t think the CJI consults 30 judges”.
‘Let’s Try It’
The Attorney General told the Bench that the first system of appointment of judges worked for over 25 years and then the Collegium worked for at least 20 years and so “let us try it (NJAC). Everybody rushed to the court saying stop this, stay this, as if some ships have sunk”.
“Things have changed. The RTI has come into operation and time has come to look at what other countries like Australia and New Zealand were doing”.
Describing the Constitution as an “elastic and flexible” document, which can be changed to meet the evolving needs of the changing times, Rohatgi made a strong plea for giving a chance to the NJAC to function. There are trials and errors and the Constitution is not a rigid document, he said.