The Narendra Modi government is likely to tell Supreme Court on Tuesday that there was no primacy of chief justice of India or that of judiciary in appointments to higher judiciary - a stand diametrically opposite to the position argued before the court in a batch of petitions challenging validity of the National Judicial Appointment Commission (NJAC).
There is no primacy of chief justice and the judiciary in the appointment of judges of higher judiciary, the government will tell the constitution bench, said informed sources, about the position that the government will take on Tuesday when its turn comes to address the court on the issue.
The government will tell the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel that the "concept of the primacy of judiciary is not either in the constitution nor does it affect the basic structure of the constitution," a source said.
The government is also likely to contest the 1993 judgment - also known as second judges case - which had talked about the primacy of the judiciary (CJI and the collegium) in selection of judges, and held that the word "consultation" with CJI in article 124 would mean concurrence. This step has been indicated earlier by Attorney General Mukul Rohatgi.
The government position is in accord with the position taken by Rohatgi, who had told the court on April 28 that how in the interpretation of article 124 (establishment and constitution of Supreme Court), the "concept of primacy of judiciary was plucked in out of air".
Contesting the arguments advanced by eminent jurists Fali Nariman, Ram Jethmalani, Rajeev Dhavan, Arvind Datar, activist lawyer Prashant Bhushan and others, the government will assail the working of the collegium system contending that its functioning was devoid of any rules and procedures and was opaque.
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It will tell the court that "the new body (NJAC) will have public participation. It will have rules and procedures and all its activities will be under public gaze".
The government will however have to put in herculean efforts to the address court's queries on the profile of the two eminent people including their suitability and ability in contributing to the process of the selection of judges.
The court has repeatedly asked questions from counsel for the petitioners including Attorney General Rohatgi on "what kind of person is this eminent person."
The petitioners including the Supreme Court Advocate on Record Association, the Bar Association of India, NGO Centre For Public Interest Litigation and others have expressed their reservation about the ability of eminent people to contribute to the selection of judges and have described provision which stipulates they include one from reserved category, minorities and woman as a farce.
The court has also asked questions on the quorum of the six member NJAC that will be presided over by the chief justice of India and include two next seniormost apex court judges, the union law minister and two eminent persons to be nominated by a committee comprising the prime minister, leader of opposition or largest group in the Lok Sabha and the CJI.