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.
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.
“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.
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."
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.
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.
"I want a clean slate so far as the bench is concerned. I am only pointing the facts before the court...Your Lordships will have to take call on it," the AG said.
The Attorney General then dealt with the constitutional history leading to the collegium system and said that it all began in 1973 when a judge was "superseded" and after the emergency was imposed.
Dealing with the doctrine of "basic structure", he said the "checks and balances" and even the right to information may form part of this doctrine.
There is nothing "absolute" in the Constitution and it never contemplated a situation as to what will happen if the President says "no" to a particular opinion and the second judges case of 1993 is "completely oblivious" of the checks and balance aspect and the "judgement requires reconsideration".
Mr. Rohatgi said that the Centre has adopted a middle path by bringing the NJAC Act. In a democracy, he said the public is supreme and the judges "exist" because of the common people.
The AG also referred to members of the Constituent Assembly and said many of them were not advocates and yet they gave valuable inputs in framing the Constitution for free India.
Even, Jawahar Lal Nehru and Rajendra Prasad were not practising advocates and they were guided by the independence movement only, he said.
At the fag end of the hearing, the AG again came back to the alleged flaws of the SC verdicts and questioned the reasons behind the 1998 collegium verdict.
The AG then raised the issue of appointment of a 59-year-old person as a HC judge in the Calcutta High Court which led to "non-elevation" of a senior judge to the apex court as he had opposed the move.
"There is a clear example of the Calcutta High Court where a judge was appointed to the High court at the age of 59 years," he said, adding that later the judge, who opposed the move, wrote a letter that he was not elevated as he had opposed it.
"Why the state government or the Government of India did not object," the bench said and shot back saying, "recently the collegium, sent a name to you and you said no".
"Giving examples or illustrations is not good. You talk on principles," the bench said.