The government on Wednesday told the Supreme Court that the challenge to the validity of the constitutional amendment and the law replacing the collegium system by NJAC was "pre-mature" as the two statutes are yet to be notified.
"If challenge is pre-mature then the question of their interim stay does not arise leave aside the other contentions of their constitutionality and other aspects," Attorney General Mukul Rohatgi told the apex court bench of Justice Anil R. Dave, Justice J. Chelameswar and Justice Madan B. Lokur.
The government red flagged the challenge to the validity of the constitutional amendment and the NJAC Act, 2014 as the court on Wednesday issued notice on the Centre's plea seeking the transfer of cases before the high courts where similar challenges have been raised.
While staying further proceedings before the high courts, the apex court also said that since it was seized of the matter no high court would entertain any challenge to the constitutional amendment and the NJAC Act, 2014.
The court is hearing a batch of petitions challenging the validity of the Constitution (Ninety Ninth Amendment) Act, 2014, that provides for setting up the National Judicial Appointment Commission (NJAC) and for enabling statute, the National Judicial Appointment Commission Act, 2014.
While Supreme Court Advocate-on-Record Association, NGO Change India and Centre for Public Interest Litigation (CPIL) and others are opposing the appointment of judges to the higher judiciary through the NJAC route, the Supreme court Bar Association has come out in favour of replacing the collegium system by NJAC.
Describing as "unfounded" the contention that parliament had no competence, power, authority or jurisdiction to pass the NJAC Act, 2014 in the absence of protecting provisions in the constitution, Rohatgi told the court that a law remains dormant unless it was notified.
Buttressing his argument opposing the interim stay of the constitutional amendment and the NJAC Act, 2014, Rohatgi said "the critical question is when it comes into force. It will remain dormant till it is notified. It is only on that date (notification) court could examine its validity."
"Crucial date is when it becomes operational. Till the time notification happens and some one's right has been affected," Rohatgi added, the court could not look into it.
The attorney general said that even the framers of the constitution favoured the middle course of the government consulting the CJI before appointing judges.
The government's resistance to challenges to the constitution amendment and the NJAC Act got an unexpected push when senior counsel T.R. Andhyarujina made a forceful plea for giving NJAC a chance asking "Whether the independence of judiciary is violated if the judges are not given power to appoint judges."
"Can there be a basic structure of the constitution where judges are given power to appoint judges," Andhyarujina asked, adding that nowhere in the world do judges appoint judges as was happening under the collegium system.
Andhyarujina cited the example of England, Australia and Canada where judges have no final say in their appointment.
Making a plea for giving NJAC a chance to function, Andhyarujina said that in England the 15-member Judicial Appointments Commission is headed by a layman with no judicial roots. He told the court that the first chairperson of the Judicial Appointment Commission in England was a woman - Baroness Usha Prashar.
Telling the court that the collegium system had run for 20 years, Andhyarujina said that "let the system (NJAC) work. Why we should condemn it" even before its gets operational?
Senior counsel and SCBA president Dushyant Dave supported the NJAC saying that the proceedings of the collegium system were shrouded in secrecy. He said that the appointment of judges was not a power but a constitutional function.
Saying the challenge to the twin legislations was stillborn, Dave wondered how the presence of the executive, judiciary and civil society violated the fundamental rights and the basic structure of the constitution.
The court adjourned the hearing till Tuesday (March 17) saying that some issues of constitutionality were involved and it would like to hear before taking a call whether it should be referred to a larger bench. The hearing will last for three days starting March 17.
