Nariman had stressed that fait accompli should not be allowed to take place and the order should be passed to maintain status quo by referring the matter before a five-judge constitution bench otherwise the entire exercise would become a "dodo".
His view was shared by Divan, who had said the legislative exercise undertaken to replace the collegium system not only reduces and overrides judicial voice but it is drowned and looks like an irreversible situation.
Nariman had contended that NJAC Bill, which was passed by both the Houses of Parliament on August 14, 2014 was beyond the legislative competence of Parliament and was in violation of Articles 124(2) and 217(1) of the Constitution and as such is invalid and void.
He had questioned the enactment of the legislation without bringing amendment in the Constitution.
Countering the arguments of Nariman and Divan, the AG had said since both Houses of Parliament unanimously passed the legislations with voice vote of 367:0 in lok Sabha and 187:1 in Rajya Sabha, "the Will of the House can't be ignored".
He had said it was wrong to suggest that new process on appointment of judges would take away consultative process.
Spelling out the constitution of the six-member panel for selection and appointment of judges, Rohatgi had said that appointment of two eminent persons in it would not be in the hand of the Chief Justice of India or the executive but in the hands of a "high-powered body consisting of CJI, Prime Minister and leader of Oppostion or leader of largest opposition party to maintain transparency.
The NJAC Act, which ends the two-decade-old collegium system of judges themselves selecting and appointing judges for higher judiciary, has also been challenged by others including senior advocate Bhim Singh, who contended that the new process is likely to jeopardise the appointment of judges in higher courts resulting in further delay in rendering justice to common people.
