Collegium can't be revived even if SC quashes NJAC: Centre

The collegium system of appointing judges cannot be revived even if the Supreme Court quashes the National Judicial Appointment Commission (NJAC) Act, the Centre submitted before the apex court today.

The Centre made this submission while voicing its reservation on the observation by the court last Friday 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.

"It is quite clear that if a substituted provision were to be struck down, the question of revival of the old provision which had been substituted by the struck down provision does not arise as the provision which had been substituted stood abrogated and ceased to exist from the statute book," Solicitor General (SG) Ranjit Kumar told a five-judge bench headed by Justice J S Khehar, hearing pleas against validity of the NJAC Act.

The bench then posed a series of questions to this submission.

"Do you (SG) mean to say that if we decide to strike it down then it has to be brought back by another constitutional amendent by the 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, also comprising justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel, said.

"You (Centre) cannot take away the 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.

To this, the SG, who was advancing arguments to supplement submissions of Attorney General Mukul Rohatgi, said the basis of the judgement could be the violation of the doctrine of basic structure, but the court cannot question the the competence of the parliament to legislate.

"You (Centre) can lack competence if the legislation is against the basic structure. The Article 368 (amending power of Parliament) does not enable the Parliament to legislate" a law which is against the basic structure, the bench responded.

The question as to "whether the amendment made by a Constitutional Amendment once struck down will revive the original/substituted Article is a matter which has already been referred to a 9-Judge Bench in terms of an order reported in 2013..., " the SG said.

"The courts cannot legislate," he said adding Parliament will step in again if the there is a legal "void" after the court decides to strike down a law on the ground of violation of doctrine of basic structure.

The exceptions in this regard is only when the substituted provision was beyond the legislative competence of the legislature substituting it, he said. 

"However, the legislative competence theory applies to general legislation and not to Constitutional Amendments which can only be tested vis-à-vis the basic structure doctrine. Therefore, the originally enacted provisions of Article 124 and 217 would not revive in case this Court were to quash the impugned provisions," the SG said.

"Why you presume that we will quash the NJAC?," the bench, in a lighter vein, asked.
During the hearing, the bench said that if it decides to strike down "a part of Article 124 A (establishment of Supreme Court)" then the remaining provision would be "truncated, meaningless and useless".

The fact that older provision does not get revived "sounds illogical", the bench said.
"Repeal (by court) of repealing Act, does not revive the Act already repealed," the Solicitor General said, adding that the law can be tested on the ground as to whether the legislature had the "competence".

A constitutional amendment can be tested on the ground of doctrine of basic structure, he added.

The bench also referred to the present "stalemate" as the Chief Justice of India has refused to take part in the meeting to select two eminent persons to the NJAC.

The CJI did not take part due to pendency of the cases here, the SG said, adding that these cases be closed as being "premature" as the NJAC has not started functioning.
The bench reacted again when the SG said that the new system be tried.

"It cannot be a hit-and-trial," the bench said.

"Suppose, you appoint 200 judges in High Courts and later find out that appointments were bad. You cannot reverse it. The independence of judiciary will be lost. It cannot be the argument that let it work," it said and asked the Centre to establish the validity of NJAC alone.

The SG said, "As the new system has not been given a chance to operate and as no relevant material has been placed before this court to show that the new provisions have resulted in curtailment or abrogation of the independence of the Judiciary, it is submitted that the present petition is premature."

It has been well established that the Parliament is presumed to be "best informed about the needs of the people and thus presumption is always in favour of Constitutionality" of the enactments, he said.

The Constitutional provisions cannot be invalidated on the ground of possibility of abuse and functionaries like Prime Minister, the CJI and the Leader of Opposition are "presumed to exercise power in accordance with law", he said.

After SG concluded the supplementary arguments, senior advocate K Parasaran said that in the the first method of appointment of judges, the power lay with the Executive and the "check was the consultation" with the judiciary.

"The question in the present case is whether the impugned Amendment changes the Constitution as originally enacted in such a manner as to conflict with any basic feature. It is submitted that a change of interpretation made by the apex court is valid if the change does not alter the structure as originally enacted in 1950.

"The Parliament can reverse an interpretation (by amending the provision of the Constitution) so long as it does not affect any basic feature," he said.

The procedure for appointment of judges as provided for in the originally enacted Constitution was not intended to be "permanent or unalterable", he said.

The provision of the Constitution was intended to be "transitory, provisional or subject to change cannot be said to form part of the basic structure", he added.

Parasaran will resume his arguments tomorrow.