Posting crisis over NJAC: 11 judges should decide, Govt tells SC

Posting crisis over NJAC: 11 judges should decide, Govt tells SC

Attorney General questions basis of case against NJAC, says 5-judge bench can’t take call on 1993 order on collegium.

NJAC. Mukul Rohatgi, SC Collegium system, Supreme Court, NJAC, NJAC Supreme Court
Supreme Court.

The NDA government Tuesday sought to strike at the root of the case being put forward by petitioners against the new National Judicial Appointments Commission (NJAC), arguing that a 1993 judgment on which most of the opposing arguments were based was not valid.

Read: Judges’ job to decide cases, not appoint brethren: Govt to SC

Appearing before a five-judge Constitution Bench, Attorney General Mukul Rohatgi said the 22-year-old judgment by a nine-judge bench, which established the “primacy” of the previous collegium system in appointing judges, was not valid in the case of NJAC.

Also Read: Government won’t appoint judges till Supreme Court resolves NJAC issue


“The nine-judge bench decision interpreted Article 124 of the Constitution, which according to me, was wrong. It does not require a reconsideration now since Article 124 has been amended by the government. The very basis of the nine-judge bench decision is now gone,” Rohatgi argued.


He said if the five-judge Bench headed by Justice J S Khehar, currently hearing the case, still holds that the previous judgment was relevant for adjudicating the case, it must be heard by an 11-judge bench.

The government’s stance came a day after it emerged that Chief Justice of India H L Dattu had informed PM Narendra Modi that he would not join the commission until the Supreme Court decided on the validity of the new system.

Rohatgi’s latest submissions put the Constitution Bench, and the petitioners, in a piquant situation since the entire edifice of the arguments by the latter is based on the 1993 judgment in the Supreme Court Advocates on Record Association vs Union of India case — also known as the ‘Second Judges Case’.

While ushering in the collegium system, the majority verdict written by Justice J S Verma had then said that “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments.

Senior advocates Fali S Nariman and Anil Divan, appearing for lawyers’ bodies opposing the NJAC, have borrowed heavily from this judgment while arguing that NJAC violates the basic structure of the Constitution.

Prior to the amendment, Article 124 read that a Supreme Court judge shall be appointed by the President “after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose”.

However, the amendment substituted “consultation with the judges” with “on the recommendation of the NJAC”. Further, Article 124A was inserted in the Constitution providing for setting up of the six-member NJAC.

”The apex court now cannot test the new provisions of the NJAC Act on an old interpretation by the nine-judge bench…and if it decided to do so, then it will have to go to a larger bench,” said Rohatgi. The hearing will resume on Wednesday.

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