The Centre on Tuesday sought the review of the nine-judge Bench judgement of the Supreme Court that paved the way for setting up of the Collegium system 22 years ago, but the five-judge SC Bench hearing the NJAC case refused to go into the plea by Attorney General Mukul Rohatgi that “consultation” with Chief Justice of India on appointing judges under Article 124 was wrongly interpreted by the larger Bench in 1993 as “concurrence”.
The Bench, comprising Justices JS Khehar, J Chelameswar, Madan B lokur, Kurian Joseph and Adarsh Goel, told Rohatgi that the argument he was making was “dangerous”. “You first accept the decision and then say it cannot be accepted…you have not even challenged it,” the Bench said, asking the Centre to seek a review by making a fresh reference to the apex court. For the present, it set out to consider if the six-member National Judicial Appointments Commission (NJAC) comprising CJI, two senior judges, law Minister and two eminent persons (appointed by CJI, Prime Minister and leader of Opposition) will be equally independent as the existing collegium system.
In support of his submission, Rohatgi produced Constituent Assembly Debates to show how Constitution framers intentionally avoided the word “concurrence” in order to deny primacy either to the executive or judiciary. What was envisaged under Article 124 was a “middle course” to ensure the President mandatorily consults CJI, but neither enjoys absolute power, Rohatgi said. He argued that such consultation was not binding on President. Accordingly he demanded review of the “erroneous” nine-judge ruling by a larger Bench.
The Bench headed by Justice JS Khehar refused to be drawn into the primacy-of-CJI debate and told Rohatgi to justify whether the National Judicial Appointments Commission ensures independence of judiciary. It said, “If you (Centre) are successful in showing to us that the interpretation of the nine-judge ruling giving primacy to the CJI is wrong, you still don’t succeed unless you succeed in showing that the present system (NJAC) does not undermine or impinge upon the independence of judiciary.”
Justice Khehar said, “A citizen of this country is worried whoever sits to decide his case is impartial and whether the stakeholders (against whom they fight cases) are not party to selection of judges so as to ensure justice is discharged with purity…nothing will turn on the primacy of the CJI. You have to show this Act ensures independence of judiciary.”
Rohatgi continued with his tough posturing. He maintained that a reference to the larger Bench was made out as he pointed out nowhere the Constitution refers to consultation with CJI to mean a collegium of CJI and senior judges. He argued that the basis of the nine-judge Bench decision was wrong and had to go as primacy of CJI has no link with basic structure of Constitution. Instead, in his view only independence of judiciary was an essential feature of Constitution.