NJAC: Opponents accuse Modi government of 'holding up' Supreme Court

New Delhi: Opponents of the new system of higher judicial appointments on Friday attacked in the Supreme Court the Centre’s “late” demand for a larger bench to hear the challenge saying “the whole court is held up for no purpose”.

Noted jurist Fali S Nariman, appearing for the Supreme Court Advocates-on-Record Association (SCAORA), told a five-judge bench headed by Justice JS Khehar that parties have been arguing on merits in the case till recently when Attorney General Mukul Rohatgi “started by saying that there is case of reconsideration of the 1993 and 1998 judges case judgements”.

Alleging loss of judicial time, he said, “the whole (Supreme) court is held up for no purpose”.

Nariman said the five-judge bench, also comprising Justices J Chelameswar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel, is entitled to hear the case completely.

“The Centre’s stand is that the second judges case is gone after Article 124A (brought by 99th Constitutional amendment). But they ask for its reconsideration by larger Bench which is the dichotomy. It is like putting the cart before the horse,” he said.

“If you are asking for reference to a larger Bench, it means you accept that Second Judges case still stands; but you (AG) also contend that it has been wiped out by Article 124A. You can’t take both the stands,” said Nariman, who will resume his arguments on the issue of referring the case to a larger bench on Monday.

He further said that the Centre has “knocked the bottom out of it” and “destroyed the root” and hence, there was nothing left to be referred to the larger bench.

Nariman further said that a new law has been enacted and its validity has to be tested on the premise as to whether it dilutes the independence of judiciary.

“All the judgements have become irrelevant as you (Centre) have changed it,” said the bench, which also took up the issue of appointment of existing additional Judges of High Courts, whose tenure is coming to end in the immediate future.

Rohatgi assured the bench that “the issue would be sorted by Monday” and “we are concerned that Additional judges on completion of their tenure have nothing to lose”.

He said steps would be taken as the first such issue is arising in the Guwahati High Court on May 20 and later in June in the Bombay High Court.

The bench said it was aware of the issue which is likely to crop up in the next 10 days and gave an assurance that some interim order would be passed.

However, earlier during the day, senior advocate Harish Salve, representing Haryana, strongly came out in support of Rohatgi’s submission that the pleas be sent to a larger bench saying that “this a matter of gravity” and the constitutional court should “re-visit the issues of great moments”.

“This is a case which affects the core of our system”, he said, adding, “Your lordships are dealing with something pivotal to Indian democracy - appointment of judges; you should not get it wrong.”

“I would submit that if the matter is heard by a 9 or 11 judges greater weight and strength of authority would be there even if you uphold the 1993 judgement or strike down,” he said

He further said “no institution is free from faults” and the apex court has to find a solution to it.

Salve then referred to systems of judges’ appointments before and after 1993 when the collegium model was introduced, having judicial primacy as key ingredient.

“I am not saying that a bench of five judges cannot strike down the Constitutional amendment,” he said, adding that it is a case which needs an “authoritative institutional pronouncement”.

The Attorney General, whose views were sought by the bench when Salve was advancing the arguments, said, “What is the hesitancy in sending it before a nine-judge bench. It is a matter of great importance.”

Solicitor General (SG) Ranjit Kumar also addressed the bench and said that the pleas be sent to a larger bench by referring the case laws on the issue.

“The (collegium) system which was approved in 1993 has failed”, he said, adding that it is not because of “independence of judiciary” but due to “intra-dependence of judiciary”.

The SG then referred to an instance where a Chief Justice of a High Court had admitted to recommending names for HC judgeship to the apex court collegium for extraneous reasons.

The Chief Justice the High Court had said that he had to obey the masters for ensuring his own elevation to the apex court, he said.

Backed by a number of states supporting the judicial appointment commission, the Centre had clashed with the opponents of the new system in the Supreme Court over its demand for referring the challenge to a larger bench.

Eminent counsel KK Venugopal, K Parasaran and Ravindra K Srivastava, appearing for various states which have ratified the new law, have favoured the plea of the Centre that the matter be sent to larger bench.

PTI