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.
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.