SC questions govt on revisiting 1993 verdict on collegium

SC questions govt on revisiting 1993 verdict on collegium

 The Supreme Court today grilled the government over the demand for revisiting its 1993 judgement that brought in the collegium system giving primacy to the Chief Justice of India in appointments to higher judiciary and wanted to know how the new Appointments Commission will not "impinge" upon judiciary's independence.

"If you are successful in showing to us that the interpretation of the nine-judge giving primacy to the CJI is wrong, you still don't succeed unless you succeed in showing that the present (NJAC) system does not undermine or impinge upon the independence of judiciary," a five-judge bench headed by Justice J S Khehar said.

"According to us your argument on nine-judge bench judgement has no meaning on the hearing of this matter," the bench said but allowed the Centre to advance its arguments on the collegium system.

The remarks were made by the bench when Attorney General Mukul Rohatgi was arguing that the issue of primacy to the CJI espoused by the nine-judge bench in the 1993 judgement does not exist in the Constitution.

The bench, which is examining the constitutional validity of the National Judicial Appointment Commission Act (NJAC), 2014 replacing the two-decade-old collegium system of appointment of judges by judges, wanted to know from the AG why he wanted to contest the nine-judge judgement when it was not the subject matter before it.

"We are not in challenge of the nine-judge judgement. At present we are on the issue of independence of judiciary and we have to protect it.

"Why don't you want to say that this (new) system is equally independent. You are not willing to show that this system is equally independent," the bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel said.

"Nothing turns on this, you have to show that this ensures independence of judiciary," the bench added.

"When the 1993 judgement came and later in the Presidential Reference, Government was the first one to agree about judicial primacy. You accepted this as your final position... You can't change your position everyday," the court  said.

"What is the compulsion now to change your stand... are you saying we were wrong in 1993?" It further asked.

The Attorney General answered the question that this case has to be heard by a bench larger than the nine-judge bench as under the Constitution there is no primacy with the CJI in the judicial appointment.

"It would be unfair not to allow me to question the correctnes of the nine-judge bench judgement. How can I be stopped from challenging that judgement when everybody on the other side has referred to it," he contended.

Rohatgi said "let me argue that there is no primacy guaranteed to the CJI under the Constitution".

His stand was objected to by senior advocate Fali S Nariman, who said there was no question of revisiting the 1993 verdict. The Attorney General was not adhering to the decorum required under the rule by raising the arguments which are not there in the Centre's affidavit.

However, the bench said since the matter concerns question of law, Rohatgi can go ahead with his submission.

"You have to show the manner in which the Act envisages and ensures the independence of judiciary," the bench told Rohatgi.

He continued his arguments by suggesting that the primacy of the CJI in appointment of judges will destroy the consultative process.

However, the bench said it was not like what the Attorney General was saying as the President will still rely on consultation with others who are not in collegium and even the collegium did not impinge upon the checks and balances envisaged by the Constitution.

While Rohatgi was advancing his submission by referring to Article 124 of the Constitution and Constituent Assembly debate to question the issue of CJI's primacy, the bench said "we are bearing with you but you are not".

"Despite collegium system, others are also consulted," the bench said and referred to the memorandum of procedure adopted by the government in appointment of judges.

However, Rohatgi shot back saying "memorandum of procedure is not the Constitution and memorandum of procedure cannot change the Constitution.

Interrupting the Attorney General, the Bench said "there are instances where the CJI did not agree but appointments were considered. The President said that this is a person who can be appointed.

"The President has substantial say on appointments and on two occassions we know even when there was no reconsideration, the President appointed," the bench said.

Rohatgi said the CJI cannot be a collegiate of collegium and it is also not binding on the President.

"I am of the view that he (President) is entitled to consult judges including the CJI but is not bound to abide," he said adding that he was talking about the discretion of the President.

"There is no primacy of the CJI", he maintained noting that "there is an inter play of checks and balances".

While the Centre was deliberating on the judicial work by referring to the perks, pensions and other benefits, the bench asked "can Parliament by law take away the independence of judiciary".

Critical of the arguments, the bench said "the consequence of your argument is that there is no independence of judiciary. Interplay must be consistent with independence of judiciary. Parliament cannot say your salary can be curtailed, etc..."

"You have to touch upon the whole gamut of independence of judiciary. It can be judicial function or administrative function or any other issue.

"You have to see that at no point of time it impinges upon the independence of judiciary," the bench said adding that even the basic structure of the Constitution needed to be protected.

"At the end of the day the basic structure must flow from the existing provisions of the Constitution," it said.

"The citizen of this country are not concerned who will be the CJI. The concern is only they the stakeholders will not participate in the process. That is the prejudice. Government of the day will participate," the bench said adding that the concern is "justice is discharged unbiased."

While the Attorney General was stressing on the need for trying the new system for appointment of judges for higher judiciary by saying that "no system is infallible," the bench said "that is why we suggest that tell us that it (NJAC) is a better system and it is an independent system".

The Attorney General replied that the NJAC was a better system but still there was a need for referring the matter to a larger bench because the issue of primacy accorded to the CJI by the apex court needs to be revisited.

However, the bench said he has to show that the NJAC will provide independence to judiciary as "in the nine-judge bench judgement there is a dilution of CJI's power as he cannot do anything himself but through consultation".

Rohatgi said under the NJAC there will be a wider body of six members and going by the debate in the constituent assembly  there was a need for adopting the middle path where each person has equal stake and CJI cannot be a class within a class.

"Don't create a situation where somebody will become higher than the other when there is an interplay of various bodies," said Rohatgi, who will continue with his arguments tomorrow.

"There are doubts and clarifications... the original Constitution had no primacy or Collegium," Rohatgi said.

"But 20 years have gone by... such a stand by the court now is very dangerous," Mr Rohatgi said.

"You are the one which is dangerous if you keep changing your positions," the bench said.

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