A day after the Centre argued that the "constitutionally flawed" collegium system required reconsideration by a larger Bench, the Supreme Court on Wednesday accused the Government of allowing controversial appointments to go through without exercising the checks and balances it enjoyed under the existing system.
"Did the collegium fail because the executive has failed to apply checks and balancesIJ Even when the collegium tried to deviate from the norms, you did not put your foot down. There you blinked, winked or closed your eye," said the five-judge bench while hearing the challenge to the Constitutional amendment introducing the National Judicial Appointments Commission.
The court was responding to an argument by Attorney General Mukul Rohatgi on the issue whether the challenge to the NJAC can be gone into when the basis of collegium, which is a nine-judge Bench decision in 1993, was itself flawed and required to be sent to a bench of not less than 11 judges for a relook.
Rohatgi cited an instance where the Supreme Court collegium allowed a 59-year-old to be made Calcutta High Court judge for she was close to the then CJI. The HC Chief Justice who objected did not make it to the Supreme Court. The Bench comprising Justices JS Khehar, J Chelameswar, Madan B lokur, Kurian Joseph and Adarsh Goel replied, "Citing examples will not be a good idea," as it pointed out a recent case of Gopal Subramaniam. "The entire collegium approved of the name but you said no and it didn't go through."
Rohatgi said, "We share the blame but why did the four judges agree in the first place." The same question the bench asked, "Why did you not object… checks and balances are available to the executive but you did not do anything." Rohatgi refused to enter into a confrontation with the judges but promised to bring a chart on Thursday showing collegium recommendations objected to by the Centre and cases where appointment was made despite Government objecting the name.
The Bench decided to hear the petitioners led by senior advocate Fali Nariman before taking a call whether the matter required to be referred to a larger bench.
The AG next argued that the collegium must be transparent just as any executive decision or law, which is open to judicial review. "Transparency is part of the basic structure and judges exist because of the people," he said. On having eminent persons in the NJAC, Rohatgi said if eminent persons from all walks of life and not necessarily lawyers could give free India a sovereign Constitution, eminent persons on the NJAC will not affect the basic structure. He cited appointments of the CAG and the Election Commissioners who remain independent despite being executive appointments.