The government told the Supreme Court on Wednesday that the National Judicial Appointments Commission (NJAC) would get operationalised "very very soon" and most of the recommendations already made by the "erstwhile collegium" have been accepted and cleared for appointment.
Attorney General Mukul Rohatgi told the constitution bench of Justice J.S. Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Goel that 97-98 percent of the cases recommended for the appointment of judges have been cleared and only a few were left.
Telling the court that after the notification on the NJAC Act, 2014, and the constitution amendment, the collegium system for the appointment of judges to higher judiciary has been put to sleep, Rohatgi said that even if constitution amendment bringing the NJAC was quashed, it would not automatically restore the collegium system.
At the outset of the hearing, the court asked whether Justice Khehar, being a member of the apex court collegium, could preside over the bench hearing the challenge to the NJAC Act and constitution amendment.
To this, Attorney General Rohatgi replied: "Justice Khehar was a member of the erstwhile collegium which has come to an end. The collegium does not exist. (NJAC) Law is operating."
When it was pointed out that a lot still needs to be done before the NJAC becomes functional, Rohatgi said: "Even if two nominated members are not there, it will become functional with four members."
At this, Justice Khehar said: "That can't happen. I think you are not right as two members can veto an appointment. If one (member of NJAC) is not there, it may work, but not two."
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The NJAC's six members would be the Chief Justice of India and two seniormost apex court judges, the union law minister and two eminent people nominated by a committee of the prime minister, the Leader of Opposition or the largest opposition group and the Chief Justice of India.
Under the NJAC Act, any two members of the commission can veto any appointment.
The NJAC will be chaired by the Chief Justice of India.