Calling it a “dangerous proposition”, the Supreme Court Tuesday questioned the government for demanding a “reconsideration” of its two-decade-old judgments, which had established collegium as the system for appointing judges and gave “primacy” to the Chief Justice of India.
“When the 1993 judgment came and later in the Presidential Reference (in 1998), the first thing that you (government) said was that you accept the judicial primacy. The Union accepted the interpretation given by this court as final and binding. You cannot change your position everyday,” said a five-judge Constitution Bench, headed by Justice J S Khehar.
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Adjudicating the validity of the new National Judicial Appointments Commission (NJAC), it asked Attorney General Mukul Rohatgi what was the “compulsion” to seek reconsideration of these judgments more than 20 years later when the government had accepted it at that time. The Bench posed these questions as the AG began arguments on Centre’s behalf by contending there was no primacy to the CJI under the original text of the Constitution but since the nine judge-bench judgments in 1990s held so, the NJAC case should also be heard by an at least nine-judge bench.
“The nine judge-bench judgment was based on wrong premises since neither the Constitution nor the Constitution framers ever intended to give primacy to the CJI in appointment of judges or make it a part of basic structure. This judgment will need a reconsideration and hence I am asking for a reference to a larger bench. Collegium was never envisaged under the Constitution. While independence of judiciary forms the basic structure, primacy of the CJI does not.,” argued the AG.
The Bench responded it would be dangerous to let the Centre seek review of a verdict now and told the AG the real test was going to be whether the new system was “better” and whether it ensured independence of judiciary.
“Even if we assume for a moment that there is no primacy to the CJI or the collegium, you still cannot succeed before us until you prove that the new system protects independence of judiciary. We don’t say there cannot be any other system but it must ensure judiciary’s independence,” said the Bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Jospeph and Adarsh K Goel.
But the AG said that it would be “unfair” and “inappropriate” to restrain the government from arguing on how the previous judgments were wrong in giving primacy to the CJI and in establishing collegium as an exclusive system of appointing judges.
He pointed out that under the Constitutional scheme, the CJI’s opinion had no extra weightage and that the President, which the AG said, would essentially mean the Council of Ministers headed by the PM, could consult with as many judges as he wants for processing judges’ appointments.