Centre to SC: Collegium system ‘illegal’, can’t stay NJAC order

AG Rohatgi said it could not be predicated that only the judges were capable of identifying the best talent.

Written by Utkarsh Anand | New Delhi | Updated: March 19, 2015 9:51 am
Collegium system, SC collegium system Supreme Court of India

The collegium system of appointing judges is “illegal” and no court has the power to stay the proposed notification on the National Judicial Appointments Commission (NJAC) that seeks to scrap this practice, the government told Supreme Court on Wednesday.

In a curt statement on the need for replacing the collegium with the NJAC, Attorney General Mukul Rohatgi told a three-judge bench that “according to the government, the collegium is an illegal system”, and experience has shown reasons for its criticism.

“There is no second view that Parliament’s power is absolute and it decided to change the system. Can the elected MPs have no say at all in the matter of appointing judges? How can it be said that independence of judiciary is guaranteed only when judges appoint judges? I can show 20 Constitutions from across the globe to argue nowhere else this happens,” he told the bench led by Justice Anil R Dave.

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Maintaining that the government’s endeavour was to pick up the best talents from across the country for appointment as judges, the AG said it could not be predicated that only the judges were capable of identifying the best talent.

He contended Supreme Court or any other court lacked the power to issue a direction to the government to either bring a law into force or restrain it from doing so. Citing a Constitution bench judgement, Rohatgi argued that no question of staying the proposed notification could arise when the court had no power to interfere in such matters.

The AG also replied to a query, raised by one of the PIL petitioners who have challenged the validity of the NJAC, as to why the BJP-led government did not adopt the recommendations made by Justice Venkatachaliah commission in its current tenure. This commission was appointed by the NDA-I and it favoured a five-member body with three judges for making appointments to the higher judiciary.

The NJAC would be a six-member body, headed by the CJI, that would also include the two senior-most SC judges, the Union Minister for Law and Justice and two “eminent persons” nominated by another panel comprising the PM, the CJI and the leader of the largest opposition party in Lok Sabha.

Defending this composition, the AG said: “Venkatachaliah (commission) is not a statute and Parliament is not answerable to you or to the Commission. ”

Seeking dismissal of the batch of eight petitions, he submitted that there was no cause of action at the moment since the government had not notified NJAC and the law was dormant. Rohatgi said the petitions were not liable to be admitted for hearing till the NJAC Act was notified, and that the court too lacked the power to issue any interim directive over notification.

The court will hear the arguments further on Thursday.

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  1. P
    Prof. Abdul
    Oct 18, 2015 at 8:40 pm
    What is this row of judges and judiciary independence all about. Who are judges and what are they. Are they representing the British Crown and not accountable and answerable to the people of India. Who maintains the Judiciary and who pays Judges their fat ries and perks amounting to lakhs. How they have landed on their chairs. They have gone so arrogant and berserk that they have devised their own mechanism to appoint themselves. What is this? Isn't it anarchy. the fault lies with the Leaders of India who have given unbridled license to the Judges all through. Otherwise it is a beaten law of democracy that the State has the onerous duty to dispense justice to the people and make arrangements for the same by setting up low courts and appointing judges to them. Wherefrom has the Collegium or Collusion system of appointing judge come from. It is a creating of the Supreme Court Judges, who in their advanced ages think of such frivolous things. How can they oust the authority of the people in appointing them. They should understand that Judiciary needs independence only while the judges are adjudicating a case which they are supposed to decide without fear and favour. But do they do like that? No . They think that they are the be all and end all of justice and whatever they say is right and correct. They have developed this thinking because the system is a colonial legacy where it is difficult if not impossible to shunt them out for inefficiency and inepude, and there is no mechanism to complain against them. They want to be the judges of their own cases. This is the sorry state of affairs in which the people of India are face to face. The Judges especially of High Courts and Supreme Court are virtual masters of new India and rule the nation from their chambers. They have virtually hijacked justice from India.
    1. S
      Mar 22, 2015 at 1:42 am
      Calling an age old system of appointment of judges as illegal is ridiculus and surpising. This way of calling of judges appointment as illegal means all the judges appointed in past and working at present are illegally appointed and hence should be removed, new judges should be legally appointed to change all the decisions of earlier judges.
      1. Rabindra Nath Roy
        May 1, 2015 at 11:12 pm
        It is outrageous for the Modi Govt. to say that collegium system is ellegal and NJAC cannot be sta. The why is Govt. taking part in the proceedings at all. It is an unconsutional statement from the Govt. That would mean any act ped by the parliament cannot be challenged in SC . So hence forth the PM or for that matter the Parliament will control the SC. So goes a saying the thieves come together to appoint a Police Inspector?
        1. R
          Rishabh shukla
          Mar 19, 2015 at 9:39 am
          "power of parliament is absolute" . probably most of the people won't agree with that.
          1. S
            Sourabh Devani
            Mar 21, 2015 at 10:24 am
            "Parliament is not answerable to you or to the Commission" Let me make it clear, Mr Rohatgi, that PARLIAMENT IS FU**IN ANSWERABLE TO EVERY CITIZEN OF THIS COUNTRY And the apex court has the right to interfere in such matters and challenge the validity of a law if it is a threat to the fundamental rights and is against the terms of Consutional provisions Judiciary is an independent thing and do not dare to try to spoil it with corrupted ministers' interference Why not introduce other measures to ensure transparency? And why not explain the defects in recommendations made by Justice Venkatachaliah? Why can't be the NJAC comprising of 3 Supreme court judges and 2 eminent persons with no Minister? And why are the two eminent personalities being selected by a body that again comprises politicians (PM and leader of opposition)? The case is in court and you have no right to advice the court what it should do and what not
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