The stage is set for a ‘constitutional showdown’ between the executive and the judiciary with the Centre on Monday informing the Supreme Court in no uncertain terms that the collegium system of appointment of judges could not be revived even if the Supreme Court were to strike down the National Judicial Appointments Commission (NJAC) Act.
The Centre’s submission came in the wake of the oral observation made by the court last week that the Collegium System of appointing judges would be revived on its own if the Supreme Court decides to strike down the 99th Constitutional amendment and the NJAC Act.
"If the NJAC is struck down, there will be a hiatus in judges' appointment as the old collegium system cannot be revived. The ball will be back in Parliament's court to enact a fresh legislation prescribing afresh the procedure for appointment of judges," solicitor general Ranjit Kumar told a five-judge bench of justices JS Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel.
The SG said Parliament never intended to dilute the independence of judiciary. "It never intended to take away the primacy of judiciary in judges' appointment. That is why it provided that three Supreme Court judges, including the Chief Justice of India, would be the largest conglomerate in the six-member NJAC," Kumar said.
"What Parliament intended to do through NJAC was to promote primacy but curtail the exclusivity of judiciary in appointment of judges," he added.
“Do you (SG) mean to say that if we decide to strike it down then it has to be brought back by another Constitutional amendment by Parliament only? Is it so, even after we strike it down on the ground that it violates the doctrine of basic structure. Why cannot the earlier position be revived?,” the Bench said.
“You (Centre) cannot take away the court’s power (judicial review) under Article 32 and 226 of the Constitution. Can that (decision) be declared void? Who will declare it void,” it asked.
Responding to this observation, the SG said, the basis of the judgment could be the violation of the doctrine of basic structure, but the court cannot question the competence of Parliament to legislate.
The SG added, "The court would be within its jurisdiction to strike down NJAC if it finds it to be in violation of the basic structure. But it has no power to order revival of collegium system as that would amount to judiciary venturing into the prohibited area of legislating."
“You (Centre) can lack competence if the legislation were against the basic structure. Article 368 (amending power of Parliament) does not enable Parliament to legislate a law which is against the basic structure,” the Bench responded.
The SG then said: "The NJAC has not yet been given a chance to operate. The petitioners have not presented any material to show that the appointments to be made by NJAC would be undermining the independence of judiciary. Their apprehensions are based only on surmises and conjectures. Give NJAC a chance to operate. Test its working after five years."
The bench said: "There are about 200 vacancies in the higher judiciary. If appropriate persons are not appointed as judges by the NJAC, then the independence of judiciary will be lost forever. So, we cannot take a chance by accepting the Centre's submission that let the NJAC be allowed to work and only then test its validity. We cannot allow hit and trial method for appointment of judges. You (Centre) just show us the validity of NJAC."
Senior advocate and former attorney general K Parasaran, appearing for the state of Rajasthan, explained to the court why the power to appoint judges was entrusted to the executive with the caveat that there should be consultation with the CJI before such appointments.
"Executive has been saddled with power and at the same time made accountable to Parliament. If the executive made a bad appointment to the judiciary, Parliament can haul it up and the Supreme Court can examine the validity of the appointment. However, when the judges (collegium) make a bad appointment, there is no accountability," Parasaran said. The arguments will continue on Tuesday.
Read the written submissions here.