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.
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.