The Supreme Court on Tuesday declined to constitute a larger bench of 11 judges to examine the validity of the new National Judicial Appointments Commission (NJAC) even as the government accused the Chief Justice of India of “creating a vacuum” in the mechanism meant to appoint judges. Earlier, the government had said the case should be referred to a larger bench since two nine-judge bench judgments which set up the collegium and gave primacy to the CJI in matters of judicial appointments could come in its way. But the five-judge constitution bench, led by Justice J S Khehar, today rejected the government’s “preliminary” objection and said it would adjudicate the case on its merits. It added that it “cannot keep judiciary and its administration in a freezer” for a long time. [related-post] The bench took a 37-minute break to discuss the issue of reference and delivered a short order after reassembling. It will hear the case during the summer vacation, from June 8. As an interim measure, the bench said, additional judges in high courts whose probation terms are ending will get an extension of three months or till the date of their superannuation, whichever is earlier. Meanwhile, a day after the government told the Supreme Court that the collegium system is “dead and buried forever”, the bench today said it was “very much concerned about the vacuum” created. But Attorney General Mukul Rohatgi replied: “There is no vacuum to be presumed here. There is a constitutional amendment in place. An amendment has been passed with huge majority in Parliament and was ratified by half of the states. The body was to have three functionaries and now the vacuum is created by one of these functionaries.” Citing pendency of the case, CJI H L Dattu has refused to be a part of the NJAC. His participation is also required for selection of two eminent persons for the panel. “If one functionary is unavailable or unwilling. it does not mean that constitutional amendment will fail. If a vacuum is created because of one person, we should not presume that the amendment will not work. Presumption of constitutionality is of highest level in case of a constitutional amendment,” said Rohatgi. He said the Constitution could not have envisaged a situation like this where one of the three functionaries would not participate. He added that there was nothing in law to prevent the two other functionaries, the Prime Minister and leader of the single largest opposition party, from going ahead with the selection of the two eminent members. The NJAC is a six-member body comprising CJI, two senior Supreme Court judges, union law minister and two eminent persons. The bench, however, asked the AG not to “raise fingers” at anybody. While Justice Khehar seemed to agree with the AG that the NJAC could be made functional without the CJI’s participation in selection of eminent persons, Justice Kurian Joseph said he had “serious doubts” if this could be done. Rohatgi requested the bench to render a judgment instead of a short order so that the government knows where it stands before it starts arguing on merits. “You are certainly entitled to know this. The reason is this: we suggested a middle path but you were not agreeable to it. People will retire, acting chief justices in high courts will have to be transferred and chief justices will have to be appointed. It is a very serious matter since the administration will suffer. Administration is very important. We cannot keep judiciary in a freezer for four-five months,” the bench responded.
