The government on Thursday said the judiciary's primacy in judicial appointments could not be perpetuated as it once again stressed on referring to a nine-judge bench the challenge to the validity of the NJAC contending that the issue could not be examined without deliberating the question on the judiciary's primacy.
Making a strong plea for referring the challenge to the National Judicial Appointment Commission (NJAC) to a nine-judge bench to re-examine whether judiciary had primacy in the appointment of judges as held by a nine judges bench in second judges case in 1993, Attorney General Mukul Rohatgi said that "it (1993 judgment) amounted to rewriting the constitution".
He said that 1993 judgment require reconsideration for addressing the question whether the "primacy of the chief justice of India in judicial appointments could be institutionalised for ever".
"Why primacy of CJI alone when other constitutional authorities like president, governor and other judges of the apex court are equally important," Rohatgi told the court buttressing his arguments for the reopening of the whole issue.
Telling the constitution bench of Justices Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel that collegium system was experimented for over two decades, he said: "Things have changed. RTI has come into operation and time has come to look at what other countries like Australia and New Zealand were doing".
Describing the constitution as an "elastic and flexible" document which can be changed to meet the evolving needs of the changing times, Rohatgi made a strong plea for giving as chance to NJAC to function.
There are trials and errors and constitution is not a rigid document, he said. "Let us try NJAC. Allow it to work. Nobody has tried it. People (petitions challenging the NJAC) have rushed to the court."
Rohatgi contended that there was a compelling necessity for the government to bring the NJAC to replace collegium system for the appointment of judges to higher judiciary. He said that judiciary too should be subjected to audit as other institutions were being scrutinised.
As he confined his arguments to the question of referring the challenge to NJAC to a nine-judge bench without going into the merits of the challenge, senior counsel Fali Nariman told the bench that it should hear the entire matter and decide the question including that of referring it to larger bench.
The position taken by the central government found ready support from senior counsel K.K.Venugopal, K. Prasaran and Ravindra Shrivastva appearing for three Bharatiya Janata Party -ruled states.
Nariman appeared for the Supreme Court Advocate on Record Association (SCAOR) which has along with Bar Association of India, NGO Centre for Public Interest Litigation and others have challenged the 2014 constitutional amendment act and the act setting up the NJAC.
