Permitting the government’s argument on the principle of separation of powers, the Supreme Court on Monday refused to stall the parliamentary process initiated by the NDA government to set up a National Judicial Appointment Commission (NJAC) to replace the collegium system for appointments to the higher judiciary.
A three-judge bench led by Justice Anil R Dave refused to entertain a batch of petitions challenging the proposed law. The bench, also comprising Justices J Chelameswar and A K Sikri, termed the petitions as “premature” and declined to admit them for hearing. The bench, however, kept all issues raised by the petitioners open, to be argued “at an appropriate stage”.
During the hearing, the bench agreed with the submission by Attorney General Mukul Rohtagi, who emphasised that the separation of powers was a recognised constitutional principle while stating that a parliamentary process, till its completion, could not be subjected to judicial interference.
He told the bench that the issues relating to the 121st Constitutional Amendment Bill and the NJAC Bill were still within the sphere of the Parliament and hence any interference with the parliamentary process at this juncture was uncalled for.
Rohtagi said stonewalling the process when the Bills are yet to be ratified by the states or receive presidential assent would “lead to chaos and amount to interference with sphere of another institution.” He cited the legal row over creation of Telangana, wherein the court had refused to admit petitions before the pertinent notification was in place.
“You are right in saying that there is separation of powers and it should be respected. Judiciary is a separate institution under this structure… it is very important,” said the bench.
Appearing for the Supreme Court Advocates-on-Record (AoR) Association, senior advocate Fali S Nariman said the moot issue of whether the Constitutional Amendment Bill and the NJAC Bill could be challenged at this stage or not should be sent to a five-judge Constitution Bench for consideration.
Nariman and another petitioner, advocate M L Sharma, also raised questions as to how the NJAC Bill was passed by both Houses of Parliament without the President’s assent to the Amendment Bill, which was the basis of empowering the government to bring in the NJAC Bill. They said that without amending the Constitution, passage of the NJAC Bill was illegal and unconstitutional.
Responding, Rohtagi said assent for the NJAC Bill would be taken only after the Amendment Bill is validated.
The court, however, declined to delve into these issues at this stage and asked the petitioners to raise all the points at a later and appropriate stage.
Meanwhile, answering a query by Nariman, the AG made it clear that there was no hiatus as far as appointment of judges was concerned and till the time the government issues a notitication on the new regime, the collegium system is still valid.
The batch of petitions had challenged the proposed law on the grounds of violating the basic structure of the Constitution which ensures independence of the judiciary. They stated that “unbridled power” to the Parliament and the Executive was sought to be accorded by way of the new law, after taking away the primacy of the collective opinion of the Chief Justice of India and other senior Supreme Court judges.
Asking the court to restrain the Centre from seeking ratification by the state legislatures, the petitions said there was an “unwarranted nullification” of the Constitution Bench judgment delivered in the SC AoR Association (Second Judges) case, whereby the nine-judge bench declared that the primacy of appointment had to be with the CJI.
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