Today, the Supreme Court restrained all the high court from admitting any petition which sought to challenge the validity of various provisions of Constitutional Amendment Act as well as the National Judicial Appointments Commission (NJAC) Act which is touted to replace the currently existing collegium system for the appointment of judges.
A three judge bench led by Justice A R Dave observed that the high courts are not allowed to proceed with any matter that concerns a challenge to the constitutional validity of these acts. Further, the Court stated that it will decide on the maintainability of the above petitions in due course along with the question whether the issue should be referred to a bigger bench.
Attorney General MukulRohatgi, arguing on the Central Government’s behalf staunchly opposed the pleas that sought a stay on the impugned legislation terming the petitions ‘premature’ since the Acts have still not been notified. According to the Attorney General, the fact that the Acts have been passed is irrelevant as only the date of notification is of significance. Consequently, the question of any interim order (of stay or otherwise) does not even arise.
Senior Advocate Dushyant Dave, appearing on behalf of the Supreme Court Bar Association agreed with the Attorney General observing that the legislations are a fine mix of executives, judiciary and the civil society. Moreover, the collegium system bore a cloud of secrecy and lacked transparency according to the senior counsel.
Senior Advocate T R Andhyarujina also backed the Central Government’s position on the issue observing that no other country in the world allows judges to appoint judges.
The bench also consisting of Justices J Chelameswar and Madan B Lokur fixed further hearing on the issue for 17th of March.
Earlier, on Tuesday the Supreme Court had initiated the hearing on the constitutional validity of the Acts as the Centre defended the Acts arguing that the new system will strengthen the judiciary instead of weakening it.
During the course of submissions, senior advocates FaliNariman and Anil Divan, appearing on behalf of the Supreme Court Advocates-on Record Association (SCAORA) and an advocate respectively charged the NJAC Act with purporting to take away the independence of judiciary. However, AG had rejected their submissions and sought to play down their apprehensions by terming them as mere fear mongering since there was no ground to believe that the executive will compromise the independence of judiciary.
Mr.Nariman argued to prevent a fait accompli observing that the Supreme Court should make a direction for maintaining the status quo by handing over the matter for adjudication by a five-judge bench. Failing to do that would allow the issue to become a ‘dodo’, argued the esteemed senior counsel. Anil Divan reiterated Mr.Nariman’s view observing that dismantling the collegium system may lead to an irreversible situation which may severely compromise judicial independence.
Further, Mr.Nariman had contended that NJAC bill contravenes Article 124(2) and 217(1) of the Constitution considering that it was beyond the legislative competence of the Parliament.Mr.Nariman also argued that the enactment of legislation is of no consequence as it has been brought without the necessary constitutional amendment being brought into effect.
The AG however argued that the enactments had the force of a resounding majority in the Parliament to back them and as such, the will of the house can’t be ignored. Further, he said that it was incorrect to assume that the formulation of new system will compromise the process of consultation.
by Siddhartha Singh.