Reconsider judicial primacy in judges appointment, government asks SC

New Delhi: The Central government Monday urged the Supreme Court to refer to a nine or 11-judge bench the reconsideration of 1993 judgment which took away from the government the power of appointing judges and vested it with an apex court collegium headed by the Chief Justice of India.

As the government pressed for the reconsideration of 1993 nine judge bench judgment, the Supreme Court Advocate on Record Association (SCAORA) – which is opposing the National Judicial Appointment Commission (NJAC) – described the plea as futile and a tactic to delay the challenge to the validity of constitutional amendment act and the National Judicial Appointment Commission Act, 2014.

Senior counsel Fali Nariman, appearing for SCAORA, told the constitution bench of Justice Jagdish Singh Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel said that even if after the reconsideration, the bench of nine judges or eleven judges reiterates the position taken by nine judges in 1993, it was not going to make any material difference.

This was because after 99th constitutional amendment act, 2014, the basis of the 1993 judgment have been washed away from the article 124 of the constitution and the NJAC has substituted the collegium system for the appointment of judges to higher judiciary.

Rejecting the contention that the central government was seeking the reconsideration of 1993 verdict – as known as second judges case that gave judiciary primacy in judicial appointments – to delay the hearing on the challenge to the NJAC, Attorney General Mukul Rohatgi told the court that it could always reconsider its earlier verdicts under “compelling circumstances” or to overrule any “questionable decision”.

Addressing the contention by SCAORA that in the event of court striking down the NJAC, the collegium system would be revived, Rohatgi said even if the court strikes down the NJAC it would not mean resurrection of the collegium system which stands buried with the amendment of the constitution.

Even as the arguments will continue on Tuesday, the court asked the attorney general to consider the fate of additional judges of the high courts whose tenure would be coming to an end during the courts of the hearing of the batch of petitions challenging the NJAC.