Centre attacks the collegium system of appointment of judges; says it has failed because it was an "opaque mechanism" which has "stifled democracy"

An assertive Union Government on Wednesday, backing to the hilt, the new system of appointment of judges submitted before the Supreme Court that the collegium method has failed because it was an "opaque mechanism" which has "stifled democracy".

Continuing his submissions on Wednesday, Mr. Rohatgi wanted the Apex Court to revisit its 1993 verdict that gave primacy to Chief Justice of India in appointments to higher judiciary. "The Centre wants validity of the constitutional amendment creating the NJAC to be tested on a clean slate. So, please refer the case to an 11-judge bench to consider the constitutionality of the nine-judge bench judgments which created the unconstitutional collegium system," Attorney General Mukul Rohatgi said.  He requested the court to decide referring the issue to larger bench even before hearing arguments on constitutional validity of the NJAC. "Make a reference today or tomorrow rather than hear arguments for 10 days on validity of the NJAC and the constitutional amendment," he said.

Defending the National Judicial Appointments Commission, Attorney General Mukul Rohatgi, continuing his arguments, submitted before a five-judge Constitution bench of the Apex Court presided over by Justice J S Khehar that the ultimate test of the new law is whether appointment by a six-member body was so obnoxious that it was hit by the principle of basic structure of Constitution.

“In democracy, masters are public. If you (judiciary) take the role of executive (in appointing judges), you are also subject of scrutiny but the Supreme Court said it will not open and not provide details how collegium chose a name,” he said.

Mr. Rohatgi said there was a lack of transparency in the previous system which has been evident from the fact that even under the RTI law entire information on the working of collegium system was not forthcoming.

“Transparency and RTI are also part of the basic structure...there are competing fields in democracy which are as important, if not more so, in the basic structure,” he said, adding, “Parliament after 65 years has come out with a mode of appointment (NJAC), could there not be broad-based considerations?”

He said that there was near unanimity on this point among the petitioners, who challenged the NJAC Act, and the government that the collegium system has been unsatisfactory and has failed completely.

“There was complete opacity and no due representation in the collegium,” Mr. Rohatgi contended. However,  the Bench  shot back, “If the collegium was not that successful, it was partly because executive did not exercise due checks and balances.”

Mr. Rohatgi said the Constitutional amendment, paving the way for the the National Judicial Appointment Commission Act (NJAC), 2014 has to be tested under Article 124 as it existed prior to the SC verdicts.

"Article 124 (establishment and constitution of Supreme Court) was dissected into several parts such as the CJI will be the head of collegium. In case of final disagreement, the views of judicial body (collegium) will prevail. It means absolute power in the collegium.

"I dare to say let us call spade a spade," he said, adding, "nobody is entitled to know the decision taken by the collegium".

Rohatgi referred to constitutional schemes on higher judiciary saying "the independence of judiciary is subject to checks and balances and it cannot be insulated by adopting a particular method of appointment."

He said the independence of judiciary can be found in the Constitution which guarantees various aspects like security of tenures and manner of removal of a judge.

"A particular process of appointment could be a point in the independence of judiciary but it could not be the fulcrum of independence of the judiciary”, said the Attorney General.

The appointment procedure is not so "pivotal" to the independence of judiciary and the question which needed to be considered is whether the process is "so obnoxious" that it will hit the doctrine of "basic structure".

"The Constitution only provides for ample maintenance of sufficient independence of judiciary and not absolute independence," he said.

The top law officer of the Centre  who in his day-long arguments dealt with issues like independence of judiciary and flaws of SC verdicts in 1993 and 1998, asked the court to decide to whether the matter would be decided by it or be referred to a larger bench.

He referred to the appointment process of the CAG and the Election Commissioners and said though they are appointed by the Executive their independence is ensured by the Constitution.

Hence, Rohatgi contended, that the appointment process cannot be the fulcrum of independence of a constitutional body like judiciary.

The Bench in the course of Mr. Rohatgi’s submissions questioned the fairness in the Centre asking the matter to larger bench, but it later relented saying it can take a call on referring the matter to a larger bench even before hearing the AG completely.

"We are recording what you are submitting. You continue and we can take a call on the issue of larger bench. It's too important a matter to rush in," the bench said and added, in a lighter vein, "the only grievance we have is that of too much of homework".

"I want a clean slate so far as the bench is concerned. I am only pointing the facts before the court...Your Lordships will have to take call on it," the AG said.

He said if the nine-judge judgement was not there, then "my case would have been better and a decision on it may be taken today itself".

The Attorney General  then dealt with the constitutional history leading to the collegium system and said that it all began in 1973 when a judge was "superseded" and after the emergency was imposed.

He also said the subsequent judgments have to be "seen in that light" and the nine-judge bench verdict "disturbed the checks and balances and entire equilibrium".

The AG then questioned the reasons behind the 1998 verdict when the issues were already settled in 1993 and said that it came as the then CJI had asserted to the government that his opinion is the final opinion of the collegium.

Responding to criticism, the Bench said "It is partly because of the executive's failure," as "whenever you (Centre) wanted to wink or blink, you did that."

"The right to amend the Constitution is granted to Parliament by the Constitution and it can be struck down only if it violates the doctrine of basic structure," Rohatgi said, adding the issues like composition of the six-member NJAC panel where judges can be in a minority cannot be a ground for striking down the law.

The Attorney General then referred to the debates in the Constituent Assembly and quoted Dr B R Ambedkar and said that the judiciary can be given "as much independence as necessary for administration of justice" "nothing less and nothing much".

Dealing with the doctrine of "basic structure", he said the "checks and balances" and even the right to information may form part of this doctrine.

There is nothing "absolute" in the Constitution and it never contemplated a situation as to what will happen if the President says "no" to a particular opinion and the second judges case of 1993 is "completely oblivious" of the checks and balance aspect and the "judgement requires reconsideration".

Mr. Rohatgi said that the Centre has adopted a middle path by bringing the NJAC Act. In a democracy, he said the public is supreme and the judges "exist" because of the common people.

The AG also referred to members of the Constituent Assembly and said many of them were not advocates and yet they gave valuable inputs in framing the Constitution for free India.

Even, Jawahar Lal Nehru and Rajendra Prasad were not practising advocates and they were guided by the independence movement only, he said.

"I am saying this on the objections raised on two eminent persons who would be part of the NJAC," he said.

At the fag end of the hearing, the AG again came back to the alleged flaws of the SC verdicts and questioned the reasons behind the 1998 collegium verdict.

"Three (members of collegium) shall become five is nothing but further legislation," he said, adding that the apex court interprets laws and cannot make them.

"If the CJI symbolises the views of the judiciary then what happens to the points of views of 27 others judges of the apex court," he said, adding "The CJI is a symbol like Pope and it cannot be like that".

The AG then raised the issue of appointment of a 59-year-old person as a HC judge in the Calcutta High Court which led to "non-elevation" of a senior judge to the apex court as he had opposed the move.

"There is a clear example of the Calcutta High Court where a judge was appointed to the High court at the age of 59 years," he said, adding that later the judge, who opposed the move, wrote a letter that he was not elevated as he had opposed it.

"Why the state government or the Government of India did not object," the bench said and shot back saying, "recently the collegium, sent a name to you and you said no".

"Giving examples or illustrations is not good. You talk on principles," the bench said.

Rohatgi then also raised the issue that the collegium did not provide for the judicial review to the High Court judges against the transfers and cited the example of Justice P D Dinakaran, who later resigned.

"This is completely flawed and completely unconstitutional," said the Attorney General who will continue with his arguments today.