Pleas on judicial appointments premature: Centre to SC

The Centre on Wednesday urged the Supreme Court not to entertain pleas challenging the constitutional validity of the National Judicial Appointments Commission (NJAC) Act as it was yet to be notified.

It told the apex court that it is still premature to entertain petitions against replacing the collegium system of judges' appointment by way of the NJAC and constitutional amendment acts.

“The laws (121st Constitutional Amendment Act and the NJAC Act) have so far not been notified. Laws could be put to test on validity only after they come into existence,” Attorney General Mukul Rohatgi submitted before a three-judge bench presided over by Justice Anil R Dave.

Terming a batch of PILs challenging validity of the laws as “premature”, he said that the question of passing an interim order on the subject did not arise.

Rohatgi defended the proposed high-powered commission, which would comprise executive members in addition to senior judges, to choose Supreme Court and High Court judges. He said Parliament in its plenary power had adopted a healthier route of appointing judges that had also been ratified by different state legislatures.

The top law officer also pointed out that primacy was maintained in the system and veto power could be exercised even by two judges to be in high-powered commission.

“Parliament's will is overwhelming,” he said, while going into the merits of both the laws.
The bench, also comprising Justices J Chelameswar and Madan B Lokur, however, wondered: “Suppose all MPs decided tomorrow to abolish Article 21 of the Constitution (right to life and liberty).”

Rohatgi responded by saying that there was limitation on legislature which was subject to the basic structure of the Constitution providing for independence of judiciary among others. He also contended many good lawyers practising in trial courts got neglected and lose out during selection of judges for HCs.

Senior advocate Dushyant Dave, president of the Supreme Court Bar Association, submitted that the apex court verdict bringing in the collegium system of appointment of judges was shrouded in opaqueness.

“The new mechanism is a brilliant mixture of executive, judiciary and civil society,” he said, supporting the government on both laws. He called the entire exercise of the Supreme Court hearing PILs as “academic”. 

Senior advocate T R Andhyarujina also questioned the collegium system, saying that no country had seen such a system operating where judges were appointing their brethren.

Meanwhile, the bench, which posted the matter for further hearing on March 17, restrained high courts from entertaining any petition on the issue.