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#NJAC: Centre begins arguments; AG Rohatgi insists on overruling ‘Second Judges case’
Apprentice Lawyer

#NJAC: Centre begins arguments; AG Rohatgi insists on overruling ‘Second Judges case’

Murali Krishnan

A week after the hearing began in the challenge to the Constitutionality of the National Judicial Appointments Commission (NJAC), the Central government today commenced its submissions in the case.

Three law officers are representing the Centre in the case – Attorney General (AG) Mukul Rohatgi, Solicitor General Ranjit Kumar and Additional Solicitor General PS Narasimha.

From the Centre’s stance in the Court today, it seems like it is going for the kill as it sought for an express overruling of the Second Judges case which had created the Collegium system. The AG stuck to his stand that he should be allowed to make submissions on the correctness of the Second Judges case first despite the Bench insisting that he should argue on the Constitutionality of the NJAC irrespective of what has been laid down in the Second Judges case.

At the outset, the AG argued that the primacy accorded to the Chief Justice of India (CJI) with respect to judicial appointments as laid down in the Second Judges cases is wrong.

“There is no primacy with the CJI with regard to judicial appointments. The Constitution, as it stood originally, did not give any primacy to the CJI. The argument is there is an interpretation to that effect in the Second Judges case. This obviously means that this case should not be heard by a 5 judge Bench”, submitted Rohatgi.

When the Court asked that “are you suggesting that the matter should be heard by a Bench larger than 9”, Rohatgi replied in the affirmative.

But the Bench was not impressed by this stance. Justice Khehar strongly contested Rohatgi’s arguments that the matter should be heard by a larger Bench stating that even if Second Judges cases is overruled, that might not save NJAC, the Constitutionality of which would be decided on the basis of independence of judiciary and Basic Structure doctrine.

“Why do you want to contest Second Judges case? In place of the CJI as interpreted in the Second judges case, is it not possible to substitute a body like NJAC? Why do you want to challenge the 9 judge Bench judgment?

Moreover, even if you succeed in showing that the CJI does not have primacy, you might not succeed in this case. Here, you will have to show that NJAC is not infringing the independence of judiciary”, said Justice Khehar.

The Bench also pointed out that when the Presidential reference was made by the Executive after the Second Judges case, which eventually resulted in the Third Judges case, the Executive had accepted the interpretation in the Second Judges case that the primacy with respect to judicial appointments is with the CJI.

“You had accepted the 9 judge Bench judgment in the Presidential reference. Is it not dangerous that you keep changing your stance?” the Bench demanded.

The AG, however, submitted that he is entitled to submit that a previous judgment of the Court needs to be reconsidered.

“The petitioners have relied on that judgment. I am entitled to argue that the very basis of that 9 judge Bench judgment, which lays down that the CJI has primacy, is Constitutionally unsound. I will then argue about the Constitutionality of NJAC.”

The Court, finally, relented and agreed to hear him on the Second Judges case’ correctness.

The AG, then proceeded to argue that the Constitution never intended to give primacy to either the Executive or Judiciary regarding judicial appointments and that the Constitution envisages enough checks and balances between the two wings. He also submitted that the judiciary is not completely insulated from the other wings of the democracy and there is no “watertight” independence for judiciary. He also argued at length on the connotation given to the word “consultation” in Article 124.

“The President is only obliged to consult the CJI and not abide by his opinion. Where does it say that the CJI’s opinion is final and binding on the President”, he submitted placing reliance on various Constituent Assembly Debates.

The Court was, however, in no mood to relent.

“The President’s opinion used to be given considerable weightage even by the Collegium. There have been at least two instances when appointments were made by the Collegium based on the President’s opinion.”

“Independence is not about having a fixed salary or tenure. It means that the most important stakeholder should not participate in the selection of judges. Central government is the biggest litigant and so a major stakeholder”, said Justice Khehar.

“Then what about the public? Is the public not a stakeholder?” asked the AG.

“Yes the public is a stakeholder. But it does not participate in the selection process”, the Bench replied.

The hearing in the case will resume tomorrow.

Image of Ranjit Kumar taken from here