The Centre told the Supreme Court on Wednesday that the collegium system, as it exists today, is illegal. Appearing for the Centre, Attorney General Mukul Rohatgi argued that if the petitions challenging the recently-enacted National Judicial Appointment Commission Act are admitted, the Centre will show how the authority of the executive in judicial appointments was successively diluted by the Supreme Court first in 1993 and then in 1998, with the introduction of the collegium system.
The assault on the judiciary came at a time when a three-judge Bench is to decide whether the PIls challenging the new law are maintainable, delaying the law’s notification in the Gazette. Beginning his arguments on this limited point, Rohatgi said, “For the present, we have to assume that the existing system of collegium is a legal system. During arguments, we will say that the collegium is illegal.”
Addressing the apprehension of petitioners that the judiciary will be overruled in the six-member NJAC, the AG said, “In the original Constitution framed by BR Ambedkar, the role (in judicial appointments) is given to the executive. This was diluted…Which system is better is within the powers of Parliament. This is a case of dilution or else we should go back to the original Article 124 (providing for consultation with Chief Justice of India).”
On the question whether a law which is not notified can be put under judicial review, Rohatgi said, “Even if the law is notified, you cannot rush to the court the other day unless you start the new experiment and see if it is working properly.” The challenge to the Act is premature, not due to the fact that it is un-notified but for the reason that there is nothing to show that the new system affects the fundamental rights of citizens or lawyers who have approached the court.
Rohatgi said that senior advocate Fali Nariman, who appeared for one of the lawyer bodies, SC Advocates-on-Record Association, had cited the recommendation of Justice Venkatachaliah Commission to review Constitution to broad-base the collegium. There, the proposal was to have five members (with three judges) which is now being increased to six.
Nariman interjected to clarify that his argument was not to adopt the Venkatachaliah model but to question why the Government did not adopt the same. The change introduced by way of a six-member NJAC was in favour of executive, Nariman said. Rohatgi said that the change introduced by Parliament was still in favour of judiciary as no attempt is being made to revert to the original scheme vesting authority with executive. He added that the challenge is academic and based on surmises and apprehensions. He further informed the Bench that if the petitions are to be heard, it must go to a five-judge Bench after hearing Centre on the questions of law to be framed.