The Supreme Court on Tuesday foiled the Centre's bid to seek a review of the Collegium system by a larger Bench and asked the Government to satisfy whether the National Judicial Appointments Commission (NJAC) was constitutionally valid.
The interim order by a five-judge Bench led by Justice Jagdish S Khehar became necessary as a stalemate arose during the hearing of the petitions challenging the NJAC. The Centre argued that the Collegium was dead and refused to accept the nine-judge Bench decisions of 1993 and 1998 by which the Collegium ca`me into place.
But the petitioners led by senior advocate Fali Nariman felt this was a deliberate attempt to delay the hearing on the NJAC law. Nariman was supported by senior advocate Ram Jethmalani to seek a stay on the operation of NJAC as a vacuum was left by the Centre in pushing through NJAC and upsetting the Collegium that remained for quarter of a century. Attorney General Mukul Rohatgi rebutted by pointing fingers at CJI, whose refusal to participate in NJAC meetings, was never envisaged and this led to the new system getting stuck.
Jethmalani warned the Court that any attempt to review the 1993 decision would bean attempt to "molest" the Constitution even as Nariman reminded the Centre that beginning 1993 there never was a majoritarian Government as we now have that threatened to reverse the 1993 position.
The Bench also comprising Justices J Chelameswar, Madan B lokur, Kurian Joseph and Adarsh Goel said, "The prayer made by Attorney General for disposing the issue with regard to need of revisiting the two judgments rendered by this Court in 1993 and 1998 to be decided first as a preliminary issue before hearing main case on merits is declined." Elaborating on what went through its mind in passing the order, the Bench felt that since Centre was not agreeable to a "middle path", hearing on NJAC was likely to extend to three-four months during which posts of Additional Judges and Chief Justices will fall vacant.
"We cannot put judiciary in a freeze," the Bench said, asking the Centre to first argue on the validity of NJAC in order to enable the Court take a call whether a decision on the law will conflict with the 1993 decisions. The question of reference to a larger Bench is still open.
The Bench posted the petitions during vacations beginning June 8 after a hardly earned consensus among senior lawyers who gave in to the bench's persuasion to suspend their holiday plans and join the case with the Bench for a national cause.
Additonal Judges of the High Courts who end their tenure will get an automatic extension of three years.