The Supreme Court on Tuesday reserved verdict on a batch of petitions challenging the constitutional amendment and enabling law for replacing the collegium system for the appointment of judges to higher judiciary by the National Judicial Appointment Commission.
The court will pronounce its verdict both on the maintainability of the challenge to the Constitution (Ninety-Ninth Amendment) Act, 2014, that provides for setting up the NJAC and to enabling statute, the National Judicial Appointment Commission Act, 2014 and whether the matter be referred to a larger constitution bench to determine if appointment of judges by NJAC violates the independence of judiciary.
A bench of Justice Anil R. Dave, Justice J. Chelameswar and Justice Madan B. Lokur reserved the verdict as Attorney General Mukul Rohatgi told the court that challenge to the constitution amendment and NJAC Act was premature as both of them are yet to be notified and operationalised.
Reiterating his earlier argument that NJAC Act could not have been passed in August 2014 as there was no supporting provision in the constitution, which came into effect only after December 31 assent to the constitutional amendment by President Prabnab Mukherjee, senior counsel Fali Nariman said that this objection was raised even in parliament when NJAC Act was being debated.
Nariman appeared for Supreme Court Advocate on Record Association.
Senior counsel Anil Divan - appearing for one of the petitioners - in the course of the hearing had defended the maintainability of the challenge to NJAC, contending that the power of the apex court under article 32 can be evoked when there is a threat to fundamental rights - actual or potential.
He had argued that the question of judicial independence arises right at the entry point of the judges to higher judiciary and under the existing NJAC, there is an imminent threat of impermissible alteration of the constitution.
Senior counsel and former additional solicitor general Biswajit Bhattacharyya referred to the verdict of the seven-judge constitution bench which had ruled that judiciary is fully competent to test the constitutional validity of a bill and its provisions.
Contending the challengers were on stronger ground, he told the court that this bench had said that if testing the constitutional validly of a bill fell within the domain of the court, parliament will not fail to take note of its decision.
