Supreme Court to government: Why question judgment that established collegium system?

"According to us your argument on nine-judge bench judgement has no meaning on the hearing of this matter," the bench said.

By: Press Trust of India Written by Utkarsh Anand | New Delhi | Updated: May 6, 2015 8:28 am
NJAC, Collegium system, SC Collegium system, SC NJAC, Supreme Court.

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.

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    Ashish Tripathi
    May 6, 2015 at 8:05 pm
    Firstly, under principles of Consutional Law, the presumption is that the laws and amendments ARE CONSUTIONAL. Supreme Courts Justices are incorrect on the burden of proof when they said, "Even if we ume 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." The burden of proof is on the Peioners to show that it is Un-Consutional. The burden is not on Mukul Rohatgi to show that it is indeed Consutional. Rohatgi does not need to prove "that the new system protects independence of judiciary." On the contrary, the Peioners need to prove beyond reasonable doubt "that the new system VIOLATES independence of judiciary." What are these Justices upto? Do they know the principles of Jurisprudence? Secondly, the 1993 judgment is not applicable here since that 1993 judgment was based on the reading of the Consutional prevalent at that time, i.e. 1993. Today, the Consution has been amended to make NJAC supreme in judicial appointments. Justices cannot go against the Consution by harping on the old 1993 Consution where, because there was no mention of who was supreme, they were forced to read into it (1993 version) a supremacy of the CJI. Today, that excuse or compulsion is no longer available, valid or relevant.
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      Harry
      May 6, 2015 at 12:06 am
      it is irrelevant whether government agreed on 1993 and changing it's views now. This is called learning. Therefore there is provision even for changing the consution. Nobody can visualize the future accurately. It is people who pay judiciary through their taxes, so they have right to say in it and need representation in it's choice. The American revolution was caused by this issue of no representation no taxes. Here judges are behaving like King George III in claiming divine sanction.
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        Rajesh
        May 6, 2015 at 12:45 am
        The judges are unnecessarily harping on "independence of judiciary". They should understand that they don't have power to legislate law to protect independence they perceive. Every insution is bound by the consution, and the consution do not give so much independence to the judiciary as to complete shielding from the parliament. Basically the argument in the Supreme court has nothing to do with legal question. It is the power struggle and the judiciary wants to win (it is easy because judges are referees as well).
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          Subramanian Venkatraman
          May 6, 2015 at 9:32 am
          I am surprised a judge asking: Why change? Even our Consution has been changed umpteen times; SC invalidates enacted laws frequently and they are either dropped or changed and an order of a lower court is changed on appeal by a higher court. Review peions are a daily routine. And our dear Judge is asking: Why change? Does he forget that even the law which the govt. proposes to change was a law which took the place of an original law? May be he would like the original law to replace the current one, since he does not like any change? Thank God the retirement age for judges are already settled. Otherwise when asked to vacate his chair he might ask: Why Change?
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            Subramanian Venkatraman
            May 7, 2015 at 8:48 am
            The contention of the judges is that including others to have a say in judicial appointments will compromise their independence and the executive wing will become all powerful. I think the same conclusion can be arrived about the current system which makes the group of judges sole authority to make such appointments. If there is no mutual trust no law can protect anything.
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              Subramanian Venkatraman
              May 6, 2015 at 9:38 am
              When it comes to their own appointment, the judges talk about 'independence of judiciary'. Do they forget that independence does not mean 'uncontrolled or unsupervised power'? If every civil service ask for the same independence where will the country be? If they are so concerned about the independence, why are they protesting to expand the bench to nine judges? Don't they agree that a larger bench will have more weight or are they afraid that a larger bench will be totally divided, which will give credence to the government's proposal?
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                Tarendra Kumar
                May 5, 2015 at 10:27 pm
                In the Consution there is no third House. People of this democratic country hope that Supreme Court knows the laxman rekha.
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                  Tarendra Kumar
                  May 5, 2015 at 10:12 pm
                  It is not relevant that government was agree to collegium system in 1998 and now it is changing its stand.Collegium system did not have any grievance redressal machenism. Representations of Judicial Officers were never responded. Even during the currency of litigation involving seniority, names were recommended by Chief Justice of High Court and it was cleared by collegium headed by CJI. People were fed up with the collegium system so Parliament ped NJAC,Act. Parliament legislation is part of Basic structure of consution. In disguise of judicial review it is not liable to be undone.Whether the 5 Judge can undone the Consution amendment ped by parliament and rectified by more than 50% of the state ?
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                    Tarendra Kumar
                    May 5, 2015 at 10:23 pm
                    O supporters of collegium system ! It did not frame any rule or regulation during its entire life span from the year 1993 to 2014. It was not for public good but for power grabbing. Its resurrection will create anarchy once more.
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