Disputing the government position, an association of apex court lawyers on Friday told the Supreme Court that parliament could not have passed the National Judicial Appointment Commission Act in August 2014 as it had no foundation in the constitution to stand on.
"The passage of NJAC Act, 2014, was illegal since the source of the power (to enact NJAC Act) was absent in the constitution," senior counsel Fali Nariman told the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel which is hearing a challenge to the NJAC's constitutional validity.
Appearing for the Supreme Court Advocate on Record Association (SCAORA), Nariman told the court that the constitutionality of a statue is determined on the grounds whether there is a a constitutional provision sustaining it the day it is passed.
The constitution's 99th amendment amending Article 124 of the constitution to pave the way for the NJAC for the appointment of judges to higher judiciary, though passed simultaneously with the NJAC Act, actually came into force on December 31, 2014, after it got Presidential assent.
"The question is could parliament have passed NJAC Act in August 2014 when the power to pass such a statute was not there in the constitution," asked Nariman.
Another petitioner challenging the NJAC - the Bar Association of India - told the constitution bench that there could be no "political influence or political pressures" in the process of selecting judges, and this was even the intent of the framers of the constitution as it referred to the position taken by B.R.Ambedkar.
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Appearing for the Bar Association of India, senior counsel Anil Divan told the court that the original article 124 providing that president would appoint judges of higher judiciary in consultation with the chief justice of India was valid when government was rarely before the court litigating against the citizens.
But today government was the largest litigant, Divan said pointing out that in past "government had hardly any interest in litigation, now being the largest litigant it was its only interest".
"If the basic postulate (that government is not a main litigant) of Ambedkar is not there then the appointment of judges have to be seen in different light and perspective," he told the court objecting to the presence of the law minister in the NJAC.
At this court asked Divan that if government was to be completely excluded from the process of the appointment of judges, then from where would the inputs about applicant's legal acumen, knowledge, ability, integrity and other aspects come from.
Saying this could be achieved through a consultative mechanism, Divan however noted this would not mean giving executive a foothold in the selection of judges.
Meanwhile, Attorney General Mukul Rohatgi continued pointing to the type of judges appointed by the collegium, as he told the bench that of the more than 200 "judgments" delivered by the former apex court judge Justice Cyriac Joseph during his stint with Delhi High Court, 92 were orders running into a few paragraphs each.
Placing the print-outs of those orders, he contested the information provided by the high courts of Kerala, Uttarakhand, Karnataka and Delhi that Justice Joseph - now the acting chairman of NHRC - had delivered hundreds of judgments.
Telling the court that he had the first hand information of the working of Justice Joseph in Delhi High Court, Rohatgi struck to his stand that collegium made some questionable appointments and asked the bench to ask Justice Lokur about it.
Justice Lokur was twice associated with Delhi High Court and during his second stint, was its acting chief justice.