The government will not make any new appointment of judges without permission of the Supreme Court even as it has resolved to make the National Judicial Appointments Commission (NJAC) functional by May 11.
On Thursday, it undertook before a Constitution Bench headed by Justice J S Khehar that no fresh appointment shall be made by the six-member panel till the court rules on the validity of the Constitutional amendment and setting up of the NJAC, which scraps collegium system of appointing judges to the higher judiciary.
“Don’t pass an order. I am telling you that no fresh appointment will take place. And if anything urgent has to be done, we will first come before you. Nothing will happen regarding the fresh appointments without the leave of the court,” Attorney General Mukul Rohatgi said.
The AG had to make this submission after the bench described it as a “bad idea” to let the government go ahead with appointment of judges although the law had been challenged and may also be quashed in case the bench holds the NJAC to be unconstitutional.
“We are worried about the fresh appointments. What happens to the people appointed if the Act goes. You (government) are also going to appoint two eminent members for the NJAC. What if we hold it to be bad in law. It will lead to embarrassment to such people. We think it is not a good idea..a bad idea (to allow government to proceed). We propose to you that you wait. It is a balanced view and also in the best interest of everyone. Otherwise, we will have to make an order,” the Bench had told the AG.
The development may be construed as a virtual stay on the operation of the NJAC whose prime task is to appoint judges. The NJAC has to be a six-member body, headed by the CJI, that will also include the two senior-most Supreme Court judges, Union Minister of Law and Justice and two “eminent persons” nominated by another panel comprising the Prime Minister, CJI and Leader of Opposition in the Lok Sabha or leader of the largest opposition party in the Lower House.
Meanwhile, Rohatgi said that the government would “definitely” constitute the NJAC by May 11 and it would clear by then confirmation of additional judges in the high courts.
He assured the bench that the idea was not to hold anybody’s confirmation or extension after a collegium has cleared their names and that the government was confident that NJAC would do it on its own without a necessity of an order from the Bench. “We have already cleared almost 98 per cent of the names regarding appointment and transfer of judges that were cleared by the collegium,” he added.
While restraining the government on one hand, the Bench also acknowledged that NJAC was a reality and the Act was in force after its notification. While turning down a plea to stop the government from constituting the NJAC, the Bench said: “The Act has to be implemented till we stay it or quash it…and we have not done either. So the Act is implemented.”
It then passed an order that the NJAC would only deal with extension of additional judges, and fixed the matter for detailed arguments on Monday.