If the Supreme Court ruled that quashing the National Judicial Appointments Commission (NJAC) would revive the Collegium system for the appointment of judges, Parliament may declare the ruling as “void”, the government informed the apex court on Monday.
In a curious submission, Solicitor General Ranjit Kumar told a Constitution Bench led by Justice J S Khehar that even if the court opts to scrap the Constitutional amendment and the NJAC Act, it lacked the power to hold that this will restore the previous legal position.
The statement came after the Bench asked Kumar: “What if we hold the Constitution could not have been amended since this violated its basic structure? The effect of quashing is that it is deemed to have never existed on the statute book. Will quashing it not revive the previous position… as if the amendment never happened?”
Kumar replied in the negative. “This court can quash it but cannot declare that the Collegium will revive because that would amount to legislating and re-enacting a provision. Legislating in within the exclusive domain of the Parliament and it is not a function of this court,” he argued.
The Bench retorted: “It may amount to anything but can we not declare that you could not have amended and since the amendment and the law is bad, previous position is restored. Will such a declaration… be void?” “It may be void,” Kumar responded. The Bench then asked him who could declare it void. “Parliament will declare it (void),” Kumar said.
The court replied that the effect of his argument was that an original provision would stand repealed although an amendment to it was quashed, which effectively nullifies the impact of the order. Kumar also contested an observation by the Bench that the NJAC was “a stillborn or an unborn child” and that it was as good as no law since it had failed to take off. “Only because its constitution has not taken place, the NJAC cannot be called a stillborn or an unborn child. The Constitution stands amended and there is a statute in place for setting it up,” he contended.
Arguing on the “doctrine of revival”, Kumar said that there would be a hiatus if the Bench quashed the NJAC — the Parliament will need to step in to frame another law but the Collegium would not return automatically.
The Bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh K Goel, said the argument appeared “illogical”.
Kumar also asserted that the court may scrap the amendment on the grounds that it violated the independence of the judiciary but it cannot be held that the Parliament has no powers to pass laws on this subject.
But the Bench said there may be a complete stalemate if it is decided to hear the petitions against the validity of the NJAC after giving it a few years to function since the Chief Justice of India has refused to participate in its proceedings citing the pendency of the matter. The arguments will continue on Tuesday.