Government can't be stopped from notifying the NJAC, SC told

The central government told the Supreme Court on Tuesday that the government could not be restrained from notifying the constitutional amendment and the law for replacing the existing collegium system by NJAC for the appointment of judges to the apex court and the High Courts.

"I am rigorously contesting the application for stay (on constitutional amendment and the National Judicial Appointments Commission Act 2014). Is it that government does not have powers to notify the will of the people", Attorney General Mukul Rohatgi told the apex court bench of Justice Anil R. Dave, Justice J. Chelameswar and Justice Madan B. lokur.

The attorney general said this to the bench constituted to hear a batch of petitions challenging validity of the Constitution (Ninety Ninth Amendment) Act, 2014, that provides for setting up the National Judicial Appointment Commission (NJAC) and for enabling statute the National Judicial Appointment Commission Act, 2014.

The Advocate-on-Record Association, NGO Change India and Centre for Public Interest litigation (CPIl), senior counsel and former additional Solicitor General of India Bishwajit Bhattacharyya, senior counsel Bhim Singh and R.K. Kapoor and advocate Manohar lal Sharma have challenged the NJAC.

Addressing the contention that selection of judges for the apex court and the high courts by the NJAC would dent the primacy of the chief justice of India in the judicial and consequently compromise the independence of judiciary - a basic structure of the constitution - Rohatgi told the court that "it was like assuming that parliament and the state assemblies tried to do some rough shod over any body (meaning judiciary)."

Rohatgi said that amendment was passed unanimously by 367 members of lok Sabha representing the will of the people and then there is a double reassurance of it after the constitution amendment was ratified by 20 state assemblies. He described as "alarmist" the position taken by the petitioners opposing NJAC.

Seeking to dispel the apprehension that the presence of the presence of law minister and two eminent people in the six members NJAC was some kind of face-off between the judicial members and the government, Rohatgi said, "NJAC will strengthen the independence of judiciary rather than weakening it."

At the outset of the hearing, senior counsel Fali Nariman appearing for the petitioner Advocate-on-Record Association said that NJAC Act, 2014 was passed by the parliament while the constitutional amendment providing for the NJAC became a reality on December 31, 2014 only after President Pranab Mukherjee gave his assent to it.

Nariman told the court that parliament had no competence to pass a law when there was no provision in the constitution backing it. He said that merely because President Mukherjee gave his assent to both Constitution (Ninety Ninth Amendment) Act, 2014, and the National Judicial Appointment Commission Act, 2014 does not give retrospective validity to NJAC Act, 2014.

"Parliament has no power, authority or jurisdiction to pass NJAC Act, 2014 in the teeth of unamended Article 124(3) and Article 273(1) of the constitution", Nariman told the court. Appearing for the Bar Council of India, senior counsel Anil Divan told the court that the provisions of the NJAC Act "completely" reduces the judicial voice. "It (judicial voice) will not only be over-ridden but drowned."

Referring to the provisions of the NJAC Act which says that judges will be selected on the "basis of the basis of ability, merit and any other criteria of suitability as may be specified by regulations," Divan said that the trouble is that criteria to be decided by the parliament would not only over-ride the judicial voice but drown it.

Senior counsel Bhim Singh appearing in person said that absence of definition of eminent persons in the NJAC could result in any one getting nominated that may include an industrialist or a film star. Bhim said that NJAC would led to "judicial anarchy" in the country by permitting any two members of NJAC to veto any appointment including the appointment of CJI.