NJAC: “Primacy of CJI only a power of insistence” says AG Rohatgi

Attorney General Mukul Rohatgi’s arguments are progressing before a Constitution Bench of the Supreme Court in the batch of petitions challenging the Constitutionality of the National Judicial Appointments Commission (NJAC)..As the Union’s arguments entered the second day yesterday, discussion centered on the contours of judicial independence and the Basic Structure doctrine..With a background on how Constitutional Amendments are tested on the touchstone of the Basic Structure doctrine, Rohatgi sought to assert that there cannot be absolute limitations on the power of the Parliament to amend the Constitution. Relying on the majority judgment in the Kesavananda Bharati case, he submitted that Article 368 empowers the Parliament to amend the Constitution provided the “basic feature” of the Constitution is not abrogated..The Bench, however, seemed skeptical as to whether it was Constitutional for the Parliament to amend a feature as basic as the independence of the judiciary. When quizzed on the same Rohatgi answered that,.“the primacy of the opinion of the Chief Justice, which was laid down by Justice Verma in the Second Judges’ case as vital to the independence of the judiciary was actually the power of insistence; namely the power of the Chief Justice to insist on a certain appointment.”.He submitted that judicial appointments by Collegium and primacy of the CJI in that regard are not “basic features” of the Constitution. He further argued that courts have time and again stated that they will not examine the discretion and wisdom of the Parliament to know the will of the people, which in this case, manifested in the form of a new system of appointment of judges..Interestingly, the Bench observed that the NJAC cannot be tested on the basis of Constitutionality alone and that the merits of the system and the procedure it employs should also be taken into account..“We cannot leave it to the God. Don’t call it a hit and trial business…say it is a good system”, the Court said..However, AG Rohatgi said that such an approach was not necessary since the NJAC has three senior most Supreme Court judges in it and the appointments made will employ their wisdom..The Court also sought for the names of those judges appointed by the Collegium which had been opposed by the executive. The hearing will resume today.