With the National Judicial Appointments Commission projected as an anathema to the long cherished concept of independence of judiciary by several PIl petitioners in Supreme Court, Centre landed a counter punch on Tuesday by questioning the basis of collegium system under the Constitution since the principle of "judges appointing judges" was never envisaged by the Constitution makers.
Opposing any attempt to stall the new law, which is awaiting formal notification to come into force, Attorney General Mukul Rohatgi told a three-judge bench hearing the case that a decision either way must be expedient as once the Constitutional Amendment to Articles 124 and 217 get notified, collegium will be replaced with a six-member NJAC comprising Chief Justice, two senior Supreme Court judges, law Minister and two eminent persons selected by CJI, Prime Minister and leader of Opposition.
Citing news reports, Rohatgi said that CJI was reportedly hesitant to be on the panel to select two eminent persons due to pendency of PIls challenging validity of the NJAC. On the question of stay of the operation of the new law, Rohatgi staunchly opposed such move claiming it was passed unanimously by both Houses of Parliament and received ratification by 20 state Assemblies, which cannot be set at naught, as it represented the collective will of the people.
The bench headed by Justice AR Dave after briefly hearing the PIl petitioners and Centre posted the matter for Wednesday on the question whether any interim order needs to be passed to maintain status quo, that will ensure the present system in vogue (collegium) to continue. Alternatively, the petitioners led by senior advocate Fali Nariman representing Supreme Court Advocates-on-Record Association (SCAORA) canvassed the bench to refer the matter to a Constitution Bench comprising at least five judges as the issue concerned appointment of judges, a field occupied previously by a nine-judge bench.
As hearing began in the case on Tuesday, petitioners all and sundry sought permission to argue with some petitioners even raising the issue of judges' kith and kin alone being favoured for appointment to higher judiciary.
The Court snubbed the petitioners for their unruly behavior comparing them to an "unlawful assembly". The SC Bar Association also jumped into the proceedings by siding in favour of the new law, thus creating a divide among the lawyers in the Supreme Court - one faction of SCAORA opposed to the NJAC while another faction led by SCBA supporting it.