The Supreme Court was told on Friday that since 1993, the government had expressed its reservations on 30 names recommended by the collegium for appointment as high courts and apex court judges, but only in nine cases, the views were accepted and the recommended names dropped.
In 21 cases, the apex court collegium overlooked the government's reservations and reiterated its recommendations, resulting in the appointment of judges even against the wishes of the government.
"Ever since 1993, in nine cases, the collegium accepted the government's views (and dropped its recommendations) and in 21 cases, it reiterated its recommendation despite government's reservation," Solicitor General Ranjit Kumar told the constitution bench hearing challenge to the constitutional validity of the National Judicial Appointment Commission.
The collegium system for the appointment of judges was created 1993 by the apex court by its judgment in second judges case whereby the chief justice of India and two senior most judges following him formed a collegium. The apex court, by its 1998 judgment in third judges case, expanded it to five - CJI plus four seniormost judges after him.
Ranjit Kumar told the constitution bench comprising Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel that was on the basis of the records that the government has now been able to compile.
As it began hearing of the batch of petitions challenging the constitutional validity of the constitution's Ninety Nine Amendment Act, 2014 and NJAC Act, 2014, the court has been asking the government to furnish it the details of the cases where the collegium recommendations were returned by the government for reconsideration.
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The court wanted to know in how many cases collegium, while accepting government's reservations, dropped its recommendations and in in how many cases, the collegium did not accept government's reservations and reiterated its recommendations.
Rebutting the government's stand that the appointment of judges was not a part of the independence of judiciary which came into play post appointment, senior counsel Rajeev Dhavan, referred to the earlier judgements of the apex court, to infer that appointment of judges was very much a part of the independence of judiciary which is turn formed the part of the basic structure of the constitution.
He assailed the position taken by Ranjit Kumar urging the court to let NJAC get operationalised and see how it functions.
Describing constitution's 99th amendment as for setting up of NJAC as "thoughtless piece of amendment", Dhavan said: "We can't experiment with the constitution or keep playing with the constitution."
Addressing the court, senior counsel and former additional solicitor general Bishwajit Bhattacharyya - one of the petitioners - said the unamended article 124 of the constitution provided that the president in consultation with the CJI would appoint the judges.
But under the new NJAC regime, the consultation has been erased and CJI becomes one of the six members of the commission with the powers to fix date and venue of the meeting, he said.
"This violates the basic structure of the constitution that remained in existence for 65 years and the dilution of the role of CJI compromises with the independence of the judiciary," argued Bhattacharyya.
Making distinction between the president's power to appoint judges in consolation with the CJI and the president being bound by the NJAC's recommendations, he said that "section 7 (3) of the NJAC Act that binds the president with recommendation of the NJAC is ultra vires of article 124."
Hearing will continue on July 14.