The Supreme Court was proposed on tuesday during oral submissions that the controversy over NJAC seeking to replace the existing collegium system for appointment of judges to constitutional courts could be rested if the government wills to accept in letter and spirit the body recommended by former CJI M.N. Venkatachaliah with a preponderance of judicial members.
Justice Venkatachaliah, who had headed the national commission to review the constitution's working, had earlier recommended a replacement to the collegium system in form of NJC with preponderance of judicial members. A bill too was brought by the Vajpayee government on that line in 2003 but it lapsed due to general elections.
Senior Advocate Fali S Nariman argued that he wondered why the government did not accept the former chief justice of India's recommended body and that if the government accepted it, he would withdraw the challenges to the constitutional amendment and the enabling law for setting up the NJAC. Nariman, who had appeared for the Supreme Court Advocate-on-Record Association (SCAORA) brushed aside the contention by Attorney General Mukul Rohatgi that the challenge to the Constitution (Ninety Ninth Amendment) Act, 2014, and the enabling statute, the National Judicial Appointment Commission Act, 2014 was pre-mature and academic as both have not been notified."I am not saying that they are not law but it is not the time to challenge their validity," Rohatgi had told the court.
Defending the maintainability of the challenge to NJAC, eminent senior counsel Anil Divan appearing for one of the petitioners told the court that the power of the apex court under article 32 can be evoked even when there is a threat to fundamental rights - a threat which can be actual or potential. Submitting that the question of judicial independence arises right at the entry point of the judges to higher judiciary, Divan told the court that under the existing NJAC, there is an imminent threat of impermissible alteration of the constitution.
Appearing for the CPIL, counsel Prashant Bhushan favoured a "fair, well considered and transparent manner of selecting judges to ensure judicial integrity in wider sense". Seeking a full-time body with a permanent secretariat like in Great Britain, he said that "once the constitution amendment has become a part of the constitution, even if it has not been notified, it is open to challenge".Pressing for the stay as they may not be presented with a fait accompli, senior counsel and former additional solicitor general Bishwajit Bhattacharyya said that the basic structure doctrine can't be invoked by challenging the statute for setting up the NJAC.
While Supreme Court Advocate-on-Record Association, NGO Change India and Centre for Public Interest Litigation (CPIL) and others are opposing the appointment of judges to high judiciary through NJAC route, the Supreme Court Bar Association(SCBA) has emerged in favour of the replacing collegium system by NJAC.
Interestingly, the presiding judge Justice Dave hearing the matter in the 3 judge bench formation is a part of the collegium. Whether a case of such high importance should be heard by a bench of higher quantum has still not been decided.