losing out on the NJAC was not the only setback the Centre suffered on Friday. The five-judge Bench in its majority verdict also ruled that the twin apex court decisions of 1993 and 1998 which introduced the collegium system required no reconsideration by a larger Bench.
Citing instances of “bad” judges selected by the collegium since it got introduced by a nine-judge Bench on October 6, 1993, the Centre had sought to give an impression that all was not well with the system of judges appointing judges. Due to this reason, Attorney-General Mukul Rohatgi had sought reconsideration of the 1993 (Second Judges case) and 1998 (Third Judges case) decisions.
The majority Bench led by Justices JS Khehar, Madan B lokur, Kurian Joseph and Adarsh Goel found no merit in the Centre’s plea. It showed the 1998 decision unanimously decided by a nine-judge Bench which had quoted the statement made by the then A-G that “the Union of India is not seeking a review or reconsideration of the judgement in the Second Judges case”.
A-G Rohatgi argued that independence of judiciary as a concept kicks in after appointment and the Constitution does not provide for a collegium. The original Article 124 contained in the Constitution, according to him, does not provide for collegium as it is the President who appoints judges in “consultation” with the CJI.
The Bench distinguished “consultation” from “aid and advice” and said that under the principle of separation of powers, the Constitution-makers envisaged mandatory “consultation” with the CJI which is not provided in any other provision relating to appointment of Comptroller and Auditor-General, CEC or other such Constitutional posts.
Keeping all this in mind, the Bench said: “It was wholly unjustified for the Union of India, which had conceded during the course of hearing of the Third Judges case that it had accepted as binding the decision rendered in the Second Judges case, to try and reagitate the matter all over again.”
The Bench also pointed out that the Centre promulgated a Memorandum of Procedure on June 30, 1999 approving the collegium system and refused to refer the decision for reconsideration to a larger Bench.
Belying the claim that collegium was a “judges appointing judges” system, the Bench said: “There is a complete comity of purpose between the judiciary and the political Executive in the matter of selection and appointment of High Court Judges. And between them, there is clear transparency also.”
Rohatgi even produced a dossier of “bad” judges appointed since 1993 to show the fallacy of the collegium system. Dealing with each case, the court found that none showed any glaring instance of lack of integrity, judicial ability or misdemeanor. And in any case, the Bench noted that each appointment was cleared even by the political Executive as well.
It said: “In case of any failure, it is not only the judicial component but also the Executive component which are jointly and equally responsible. Therefore to single out the judiciary for criticism may not be a rightful reflection of the matter.”