The Supreme Court on Thursday asked the Centre whether judicial appointments made prior to the Collegium strictly followed the Constitution where the President consulted the Chief Justice of India alone and no other judge of Supreme Court or High Courts.
The question came as a necessary fallout during the arguments on the NJAC law after the Centre argued that the Collegium disturbed the delicate balance in the Constitution Article 124 providing for “consultation” between the executive (President with aid and advice of Cabinet) and judiciary (Chief Justice of India). Attorney General Mukul Rohatgi had argued that the introduction of Collegium by a nine-judge Bench in 1993 altered the word “consultation” to mean “concurrence” and CJI to mean a collegiate of CJI and four senior judges.
The five-judge Bench led by Justice JS Khehar told Rohatgi, “Give us some data so we can know whether there was any stalemate between the executive and judiciary. Show us whether between 1950 and 1993, there was ever a case when the President even consulted a judge of Supreme Court or High Courts in taking decisions.” The Bench, also comprising Justices J Chelameswar, Madan lokur, Kurian Joseph, and Adarsh Goel, added, by saying, “The question we want to consider is whether Article 124 was functioning in the manner in was contemplated in the original Constitution.”
Rohatgi who concluded his arguments on Thursday again stressed for a reconsideration of the 1993 decision forming collegium. He argued that the judgment of the nine judges was a “nullity” as one among the nine gave a dissenting view disclosing there was no discussion between them before the majority of five gave the leading judgment on the case.
States of Rajasthan, Madhya Pradesh, and Chhattisgarh led by legal luminaries K Parasaran, KK Venugopal and Ravindra Srivastava backed the Centre by arguing that till the 1993 verdict is reviewed, the new law introducing NJAC cannot be constitutionally tested. But the Court reasoned that if the NJAC law “wiped out” the 1993 decision, there was no question of its reconsideration. But States said they will be “handicapped” to argue on validity of
NJAC without knowing whether or not 1993 decision was good or bad law. The Bench may decide this question on Friday after hearing the petitioners led by senior advocate Fali Nariman.