Centre attacks the collegium system of appointment of judges; says it has failed because it was an "opaque mechanism" which has "stifled democracy"

An assertive Union Government on Wednesday, backing to the hilt, the new system of appointment of judges submitted before the Supreme Court that the collegium method has failed because it was an "opaque mechanism" which has "stifled democracy".Continuing his submissions on Wednesday, Mr. Rohatgi wanted the Apex Court to revisit its 1993 verdict that gave primacy to Chief Justice of India in appointments to higher judiciary. "The Centre wants validity of the constitutional amendment creating the NJAC to be tested on a clean slate. So, please refer the case to an 11-judge bench to consider the constitutionality of the nine-judge bench judgments which created the unconstitutional collegium system," Attorney General Mukul Rohatgi said. He requested the court to decide referring the issue to larger bench even before hearing arguments on constitutional validity of the NJAC. "Make a reference today or tomorrow rather than hear arguments for 10 days on validity of the NJAC and the constitutional amendment," he said.Defending the National Judicial Appointments Commission, Attorney General Mukul Rohatgi, continuing his arguments, submitted before a five-judge Constitution bench of the Apex Court presided over by Justice J S Khehar that the ultimate test of the new law is whether appointment by a six-member body was so obnoxious that it was hit by the principle of basic structure of Constitution.“In democracy, masters are public. If you (judiciary) take the role of executive (in appointing judges), you are also subject of scrutiny but the Supreme Court said it will not open and not provide details how collegium chose a name,” he said.Mr. Rohatgi said there was a lack of transparency in the previous system which has been evident from the fact that even under the RTI law entire information on the working of collegium system was not forthcoming.“Transparency and RTI are also part of the basic structure...there are competing fields in democracy which are as important, if not more so, in the basic structure,” he said, adding, “Parliament after 65 years has come out with a mode of appointment (NJAC), could there not be broad-based considerations?”He said that there was near unanimity on this point among the petitioners, who challenged the NJAC Act, and the government that the collegium system has been unsatisfactory and has failed completely.“There was complete opacity and no due representation in the collegium,” Mr. Rohatgi contended. However, the Bench shot back, “If the collegium was not that successful, it was partly because executive did not exercise due checks and balances.”Mr. Rohatgi said the Constitutional amendment, paving the way for the the National Judicial Appointment Commission Act (NJAC), 2014 has to be tested under Article 124 as it existed prior to the SC verdicts."Article 124 (establishment and constitution of Supreme Court) was dissected into several parts such as the CJI will be the head of collegium. In case of final disagreement, the views of judicial body (collegium) will prevail. It means absolute power in the collegium."I dare to say let us call spade a spade," he said, adding, "nobody is entitled to know the decision taken by the collegium".Rohatgi referred to constitutional schemes on higher judiciary saying "the independence of judiciary is subject to checks and balances and it cannot be insulated by adopting a particular method of appointment."He said the independence of judiciary can be found in the Constitution which guarantees various aspects like security of tenures and manner of removal of a judge."A particular process of appointment could be a point in the independence of judiciary but it could not be the fulcrum of independence of the judiciary”, said the Attorney General.The appointment procedure is not so "pivotal" to the independence of judiciary and the question which needed to be considered is whether the process is "so obnoxious" that it will hit the doctrine of "basic structure"."The Constitution only provides for ample maintenance of sufficient independence of judiciary and not absolute independence," he said.The top law officer of the Centre who in his day-long arguments dealt with issues like independence of judiciary and flaws of SC verdicts in 1993 and 1998, asked the court to decide to whether the matter would be decided by it or be referred to a larger bench.He referred to the appointment process of the CAG and the Election Commissioners and said though they are appointed by the Executive their independence is ensured by the Constitution.Hence, Rohatgi contended, that the appointment process cannot be the fulcrum of independence of a constitutional body like judiciary.The Bench in the course of Mr. Rohatgi’s submissions questioned the fairness in the Centre asking the matter to larger bench, but it later relented saying it can take a call on referring the matter to a larger bench even before hearing the AG completely."We are recording what you are submitting. You...

Centre attacks the collegium system of appointment of judges; says it has failed because it was an "opaque mechanism" which has "stifled democracy"

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