The central government on Tuesday told the Supreme Court that it rejected the Madhya Pradesh government's stand that veto provision in the NJAC was "bad" and on conceding primacy to judicial members in the appointment of judges if three judicial members are unanimous on a name.
This was a climb down by the Madhya Pradesh government which had earlier parroted the central's government's position that there was no primacy of judiciary in the appointments to higher judiciary - a shift described by the court as a "major change".
The NJAC provision provides that any two members of the commission - comprising the chief justice of India, two next senior-most apex court judges, the law minister and two eminent people - could veto a name even if it is supported by other four members.
"I don't agree with it at all. I stick to my argument (supporting the veto provisions and no primacy of judiciary)," Attorney General Mukul Rohatgi told the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel.
He cleared his stand as Justice Khehar sought his view on Madhya Pradesh government's stand taken earlier in the day when senior counsel K.K.Venugopal, appearing for the state, told the court that he agreed that the veto proviso was bad and principle of primacy of judiciary must figure.
Opposing giving any preferential treatment to the unanimous view of the three judges in the NJAC, Rohatgi said: "If you say that don't give veto to somebody else, it will put the judges on a higher pedestal (and then) who will sit in the NJAC?"
Deliberating on his position, Venugopal said that if three judicial members (the CJI and two apex court judges) agree on a name and other three members oppose it, then the views of judicial members will prevail and the name would be recommended for appointment.
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However, he clarified that this would happen only in the situation when all the three judicial members agree on a name and in no other situation. In other situations, the common law principle of majority would prevail.
Defending the revised position of the Madhya Pradesh government, Venugopal said that though the amendment of constitution's article 124 bringing in NJAC has taken away the basis of second judges case judgment of 1993, which gave primacy to the judiciary in appointments to higher judiciary, certain principles still survived and those principles could still be suitably incorporated in the NJAC.
Distancing from the stand taken by the Madhya Pradesh government, Rohatgi, speaking for the central government, told the court that once the basis for the 1993 judgement were toppled, then the principles emerging from it too would go.
He said that there could be no dissection of a judgement where principles could be seen independent of other facets of the judgment.
While the attorney general addressed the court nearly for an hour including on the presence of two eminent people in the NJAC, the bench kept on querying ohm on the role that these independent people - having no connection to law - would play in the appointment of judges or the contribution they would make in selecting merited and suitable candidates for appointment as judges.
The constitution bench its hearing a batch of petitions including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others challenging the constitutional validity of the constitutional amendment act, and act setting up the NJAC.
Rohatgi will continue on Wednesday.