Taking a divergent position from the government, the Supreme Court Bar Association (SCBA) Tuesday told the Supreme Court that if it was to strike down the NJAC, then it would result in automatic resurrection of the collegium system followed earlier.
"I disagree with the government that the invalidation of the NJAC would not result in the restoration of the collegium system," SCBA president Dushyant Dave told the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel.
In the event of the court knocking out the constitution's 99th amendment paving way for the National Judicial Appointment Commission (NJAC) and the NJAC Act, 2014, Dave said that 1993 second judges case verdict and 1998 opinion on presidential reference would again rule the appoint of judges to the apex court and the high courts.
"That is the law if NJAC goes," Dave told the bench which is hearing a batch of petitions including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others challenging the constitutional validity of the constitutional amendment act and the NJAC Act.
The government had Monday however told the court that if it were to strike down the NJAC then it would not result in automatic restoration of the collegium system and parliament would step in to deal with the situation.
Defending the NJAC route, Dave told the court that if the method of selection and appointment of judges did not go against the constitution, then its actual implementation must be experienced instead of deciding its validity on conjectures and apprehensions.
He said that though independence of judiciary was the part of the basic structure of the constitution, then the parliamentary democracy too was a part and stood at a higher pedestal.
Dave said that the crux of the basic structure in respect of independence of judiciary is the difference between the original article 124 of the constitution which said that the president will appoint judges in consultation with the chief justice of India and the 1993 collegium system giving predominant voice to the judiciary.
Assailed the collegium system being "non-transparent, not accountable and shrouded in mystery", senior counsel T.R.Andhyarujina, appearing for Maharashtra, said: "Independence of judges does not come from who appoints them but from the character of the individuals so appointed."
At this, Justice Khehar said: "What is the accountability now? It is a matter of perception.A You find a person good and he turns out to be bad."
Andhyarujina said that under collegium system, there was no diversity which would be there under the NJAC as he told the court that so far only six women, and two scheduled caste judges have been elevated to the apex court with an insignificant scheduled tribe representation.
Defending the presence of two eminent persons, Andhyarujina said that they will not be cricketer Sachin Tendulkar or music director Zubin Mehta but the people who have the knowledge and background of the working of judiciary.
Senior counsel Ravindra Shrivastava said that mere existence of power of executive in judges' appointment or its participation in the process does not make it appointments incompatible with the independence of judiciary.
Appearing for Chhattisgarh, Shrivastava told the bench that 1993 verdict in the second judges case has been "misunderstood and misapplied" as the primacy of judiciary in appointments was only in the case of disagreement on the recommended names between the executive and judiciary.
Noting NJAC with a minimum of political influence should be seen as a step forward, he also defended presence of eminent people on it as it "is assumed that eminent persons will act independently rather than colluding and colliding with other members."
As Additional Solicitor General Tushar Mehta urged the court not to junk NJAC at the threshold and let it function before deciding if it was detrimental to the working of judiciary, Jutice Lokur said: "With 0.07 percent of the total plan outlay allocated for the judiciary, how do you expect the judiciary to function?"
Hearing will continue on Wednesday
