The Supreme Court was told Tuesday that the controversy over the NJAC to replace the existing collegium system for appointing judges to higher judiciary could be rested if the government was to accept the body recommended by former CJI M.N. Venkatachaliah with a preponderance of judicial members.
Wondering why the government did not accept the former chief justice of India's recommended body, senior counsel Fali Nariman told a bench of Justice Anil R. Dave, Justice J. Chelameswar and Justice Madan B. Lokur that if the government accepts it, they would withdraw their challenges to the constitutional amendment and the enabling law for setting up the National Judicial Appointment Commission.
Venkatachaliah, who had headed the national commission to review the constitution's working, had recommended replacing the collegium system with NJC with preponderance of judicial members. A bill too was brought by the Vajpayee government on that lines in 2003 but it lapsed due to general elections.
Nariman, who had appeared for the Supreme Court Advocate-on-Record Association brushed aside the contention by Attorney General Mukul Rohatgi that the challenge to the Constitution (Ninety Ninth Amendment) Act, 2014, and the enabling statute, the National Judicial Appointment Commission Act, 2014 was pre-mature and academic as both have not been notified.
"I am not saying that they are not law but it is not the time to challenge their validity," Rohatgi told the court.
Defending the maintainability of the challenge to NJAC, senior counsel Anil Divan appearing for one of the petitioners told the court that the power of the apex court under article 32 can be evoked when there is a threat to fundamental rights - a threat which can be actual or potential.
Telling the court that the question of judicial independence arises right at the entry point of the judges to higher judiciary, Divan told the court that under the existing NJAC, there is an imminent threat of impermissible alteration of the constitution.
The court was told this in the course of the hearing of a batch of petitions challenging validity of the constitutional amendment act and the enabling statute.
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 high judiciary through NJAC route, the Supreme Court Bar Association has come out in favour of the replacing collegium system by NJAC.
Appearing for the CPIL, counsel Prashant Bhushan favoured a "fair, well considered and transparent manner of selecting judges to ensure judicial integrity in wider sense".
Seeking a full-time body with a permanent secretariat like in Britain, he said that "once the constitution amendment has become a part of the constitution, even if it has not been notified, it is open to challenge".
Seeking the matter be referred to the larger bench, Bhushan said the court may not order interim stay as the laws have yet to be notified and same can be done later.
Pressing for the stay as they may not be presented with a fait accompli, senior counsel and former additional solicitor general Bishwajit Bhattacharyya said that the basic structure doctrine can't be invoked by challenging the statute for setting up the NJAC.
