Pressure has built up on Supreme Court to decide the maintainability of petitions challenging the National Judicial Appointments Commission (NJAC) with the Centre, Supreme Court Bar Association and senior leaders of the bar suggesting that the challenge to the new law is “premature” pending its notification.
The three-judge bench decided to hear arguments on maintainability of the petitions on Tuesday and by abundant caution directed that no High Court would entertain petitions challenging the NJAC law or the Constitutional Amendment that approved it.
The restraint on High Courts was issued after the Centre led by Attorney General Mukul Rohatgi moved an application to stay all similar petitions pending before various High Courts. Issuing notice on it, the bench comprising Justices AR Dave, J Chelameswar and Madan B lokur said, “No High Court will proceed with the matters relating to the constitutional validity of these laws.”
Rohatgi, who had opposed any stay on notifying the NJAC Act and the Constitutional Amendment Act to Articles 124 and 217 (relating to appointments of judges to Supreme Court and High Courts) termed the petitions challenging the new law as “premature” and wondered how the Acts can be stayed when they have not come into force by way of a Gazette Notification. “The passing of an Act is irrelevant. What is important is the date of notification,” the AG submitted.
He found support from senior advocate TR Andhyarujina, who appeared on his personal behalf to assist the Court. “In no country of the world this system of judges appointing their brethren is operating,” Andhyarujina said, taking a position contrary to what was being argued by senior advocates Fali Nariman and Anil Divan who represented the petitions filed by SC Advocates-on-Record Association and Bar Association of India.
The dissent grew shriller as senior advocate Dushyant Dave intervened on behalf of the 1200-member strong Supreme Court Bar Association (SCBA) of which he is the President terming NJAC a “brilliant mixture of executives, judiciary and the civil society” that offered a suitable alternate to collegium system, whose decisions have remained shrouded in secrecy.