Collegium dead & buried forever, can’t return: Govt to Supreme Court

The Parliament has amended Article 124 to state that the Chief Justice of India and other judges of the Supreme Court shall be appointed on a recommendation by the NJAC.

Written by Utkarsh Anand | Amitabh Sinha & Debabrata Mohantynew Delhi | Updated: May 12, 2015 7:29 am
Collegium system, Supreme Court, SC collegium system, BJP government, NDA government, SC collegium system, National Judicial Appointments Commission, NJAC, AG Mukul Rohatgi, njac, supreme court,  supreme court NJAC, judicial excess,  judiciary,  Ministry of Law, appointments of judges, NJAC controversy, judicial appointment, modi government, National Judicial Appointments Commission, National Judicial Appointments Commission, indian express news, india news, india law news, news, nation news, indian express, NJAC news, express news The Parliament, it said, will have to frame another legislation to deal with the appointment of judges to the higher judiciary in case the constitutional amendment and the NJAC are held to be bad in law.

The government Monday told the Supreme Court that the collegium system is “dead and buried forever” and it cannot be revived even if the Constitution Bench quashes the new National Judicial Appointments Commission (NJAC).

The Parliament, it said, will have to frame another legislation to deal with the appointment of judges to the higher judiciary in case the constitutional amendment and the NJAC are held to be bad in law.

“Even if it (NJAC) is quashed, what is dead cannot be revived. You cannot go back to the old system. There is no question of automatic revival of the old system and the Parliament will sit again to re-legislate,” Attorney General Mukul Rohatgi told a five-judge Bench led by Justice J S Khehar.

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The AG added, “The original Article 124 has now disappeared from the Constitution. It is dead, buried and gone forever. It cannot be resurrected. It won’t come to life even after this Bench quashes the amendment and holds that the NJAC is unconstitutional.”

The Parliament has amended Article 124 to state that the Chief Justice of India and other judges of the Supreme Court shall be appointed on a recommendation by the NJAC. Before the amendment, Article 124, by virtue of interpretation by two nine-judge benches in the 1990s, had laid down that a collegium, with primacy to the CJI, will appoint such judges.

Rohatgi asserted that once the Constitution had been amended, there was no way the collegium system could be restored.

In view of the Centre’s argument, the Bench sought to know the legal position regarding the CJI and judges’ appointment in case the amendment to Article 124 is quashed. The AG replied that Article 124 will be deemed to have disappeared forever from the text of the Constitution. Senior advocate K Parasaran, who appeared for the state of Rajasthan, supported Rohatgi’s argument while clarifying that Article 124, in the form it has been interpreted by the top court to establish a collegium, will never be revived.

Further, Rohatgi reminded the Bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel, that the judges were deciding their “own cause” by virtue of a doctrine of necessity.

“In all proprietary, this case must be decided by a bench of nine or eleven judges since all such cases were decided by a bench of nine judges. Let there be an authoritative pronouncement by a proper bench. It is too important a question, why should five judges burden themselves with it,” argued the AG, demanding that the matter be referred to a large bench for a decision.

He said that the government was not resisting scrutiny by the court, nor was it closed to changes that may be suggested by the court after hearing the matter, but it was of the view that this must be heard by a larger bench since the principles evolved in the 1990s judgments shall come into question. The AG pointed out that even the petitioners, who have challenged the validity of the NJAC, criticised the working of collegium, and hence it was time that the system should change to reinforce checks and balances in matters of judges’ appointments.

The bench, which will hear the matter again on Tuesday, has asked the AG to prepare a draft note on the interim order that could be passed for extending the tenure of additional judges, whose probation terms end during the pendency of the case, in case the case is referred to a larger bench.

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  1. D
    Dineshkumar agrawal
    Nov 6, 2015 at 1:01 pm
    Present collegiyum system is perfect. no need to change it. no politision should be joined to decide abt judges appointment. because all politision are useless and their integrity is doubtful thanks
    Reply
  2. V
    Vinu
    May 12, 2015 at 8:55 am
    Elected representatives of the people are supreme. CJI will always rank below the parliament as an insution.
    Reply
  3. G
    gopal
    May 12, 2015 at 7:58 am
    What about appointment of judges to lower judiciary? Is the existing system satisfactory?
    Reply
  4. O
    Overhaul
    May 12, 2015 at 8:27 am
    Great now politicians get to pick who gets to decide on their corruption cases
    Reply
  5. R
    rajesh
    May 12, 2015 at 11:12 am
    No where in the world a Supreme Court Judge selects another of his colleague. American justices are appointed by President and they go through rigorous scrutiny in the Senate. Same happens everywhere and it is the basic right of the executive to appoint a judge. After appointment, executive can only intervene if there has been a gross miscarriage of justice by the appointed judge. In India, a judge appoints his son as the next judge, a politician appoints his son as next politician, a thug appoints his son as the next thug.. It happens only in India. Result: Mive corruption in lower judiciary and heavy chronyism in high court and even sometimes in Supreme Court. Think about K G Balakrishnan and Y Sabharwal. How did they become judge in Supreme Court ?? All due to this closed system of mutual back scratching.
    Reply
  6. S
    Subramanian Venkatraman
    May 12, 2015 at 9:48 am
    I wish the AG has come out with this excellent statement of government policy right at the beginning, instead of pleading with the Judges as though the government was seeking a favour. Any self respecting Bench will declare that further arguments or any decision will be fruitless because of the stand of the government and terminate any further proceeding in the matter.
    Reply
  7. W
    welingkar
    May 12, 2015 at 9:28 am
    It is not about the CJI but about the independence and the consutional powers that are sought to be controlled by indirectly controlling who is appointed as a judge? Are our political parties so free that they choose their own heads democratically? How do you expect them to appoint a watchdog without mailce?
    Reply
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