The central government on Wednesday strongly opposed the plea seeking to restrain it from setting up a panel to make appointments to the higher judiciary, replacing the collegium system, telling the Supreme Court that the plea was "premature, academic and without cause" and the new system should be allowed to work first to see its efficacy.
Contending that the plea to stay the enforcing of National Judicial Appointment Commission Act, 2014 was "abstract, bereft of facts, bereft of injuries, or bereft of the facts that the body of the lawyers who are opposing it would be affected", Attorney General Mukul Rohatgi asked the bench of Justice Anil R. Dave, Justice J. Chelameswar and Justice Madan B. Lokur whether elected members of parliament should "have no say in the appointment of judges".
Making a plea against the court stepping in at this stage, he said: "It is always in the course of implementation or trial some difficulties will arise and they can always be corrected. Allow it to work. Only then court can examine whether this (collegium system) is better or that (NJAC) is better."
Underlining the supremacy of parliament, he asserted that the question of deciding between the two is "is in the province of parliament".
Describing the NJAC as a "judicious mix of judiciary, executive and the civil society", Rohatgi said "there is no absolute say here (with judiciary), no absolute say there (executive)" and mocked the contention that NJAC was an "affront" to judicial independence.
Questioning the collegium system, he said: "Experience has shown that everything is not well with existing system", and added that even the petitioner - the Supreme Court Advocate on Record Association - who have challenged the NJAC, favours changing it.
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Arguing that the court could not pass an order restraining the government from going ahead with the NJAC, Rohatgi, referring to an earlier constitution bench judgment, said that the court had no power to tell the government to enforce a law and by the same measure, it does not have power inhabiting the government from enforcing a law.
He brushed aside senior counsel Fali Nariman's submission that NJAC Act does not states why it turned its back on the former chief justice M.N. Venkatachaliah's recommendation for a five member National Judicial Commission with three judicial members, saying parliament was not obliged to accept these recommendations.
"Parliament is not answerable to Fali Nariman or M.N. Venkatachaliah. They are not statutes. It was a commission and after 15 years, parliament can take a different view."
The attorney general also contended that if the court decides to refer the matter to a five judges bench, then it should also hold a hearing on the framing of question that would be addressed by the larger bench.
Solicitor General Ranjit Kumar meanwhile told the court that it had no power to stall the proposed notification and it should not exercise its discretionary powers against the government.
"Given the presumption of constitutionality, the will of the legislature should not be stayed or put on hold. System of checks and balances should be acted upon in a balanced way," he said.
Telling the court that the challenge to the constitutional amendment and NJAC Act, 2014 could not be heard, senior counsel and Supreme Court Bar Association president Dushyant Dave said that since the law has not come into force, it can't be challenged.
He said the question that NJAC was violative of the basic structure of the constitution could only be examined in context of the constitutional provisions and not in light of 1993 judgment of the apex court in judges case.
Hearing will continue Thursday.