“Basic structure is independence of Judiciary, not judges appointing judges” Attorney General defends NJAC in Supreme Court

After more than twenty years of what has been slyly termed as “judges appointing judges”- a system which is arguably one of a kind in any democracy in the world – all eyes are now on Court room 3 of the Supreme Court of India, as the hearing in a batch of petitions challenging the constitutionality of the National Judicial Appointments Commission (NJAC) commenced today..A three judge Bench presided by Justice Anil R Dave and comprising Justices Madan B Lokur and Jasti Chelameswar is hearing the challenge to the Constitutional validity of the NJAC Act, 2014 and the Constitutional amendments to Articles 124 and 217 vide the Constitution (99th Amendment) Act, 2014. The following are the petitioners in the matter – Supreme Court Advocates on Record Association (SCAORA), RK Kapoor, Bhim Singh, Bishwajit Bhattacharya, Centre for PIL, Manohar Lal Sharma, Change India and Bar Association of India (Petitioners)..Senior Advocate Fali S Nariman appeared for SCAORA today while Senior Advocate Anil Divan appeared for the Bar Association of India. Senior Advocate Bhim Singh argued in person. Attorney General Mukul Rohatgi (AG) appeared for the Central government..Interestingly, the Supreme Court Bar Association (SCBA) has also impleaded itself in the matter in support of the NJAC. SCBA Secretary Aishwarya Bhati mentioned the matter this morning before Court 3 and filed the impleadment application. Senior Advocate and SCBA President Dushyant Dave is representing the SCBA..When the hearing commenced at 2 pm, there was action right away as two petitioners sought for intervention resulting in Justice Chelameswar losing his cool. Subsequently, Fali Nariman, in an apparent dig at SCBA, said that:.“When judges are talking, lawyers should listen to them and then speak. Today resolutions are being passed against judges”..He was referring to the proposed resolution against Chief Justice HL Dattu and Justice Pinaki Ghose which the SCBA was planning to take up today..Dushyant Dave, who was present in the Court, immediately retorted that if Nariman wanted to debate on that, it could be done outside the court room..Nariman, then, proceeded to argue his case. He strongly pressed on the fact that the NJAC Act was passed before the Constitutional amendments to Articles 124 and 217 were brought about, thereby, rendering the Act void ab initio. He also submitted that the case should be heard by a Constitution Bench and not a three-judge Bench..“A Constitutional amendment cannot be used to validate an earlier legislation which itself was unconstitutional…Is it not a fit case to be heard by a 5 judge Bench?”, he demanded..Nariman also contended that the 99th Amendment Act takes away the primacy of the judiciary with respect to appointment of judges, thereby, impinging the Basic Structure of the Constitution. Nariman further argued that Article 124C, which has been inserted in the Constitution by the 99th Amendment Act, gives the Parliament unbridled power to regulate judicial appointments through ordinary law and the same cannot be challenged using the Basic Structure doctrine..He sought for status quo to be maintained till the matter is finally decided while claiming that,.“There would have been no Second judges case, if the Executive had not openly stated that it wanted “committed” judges.”.Subsequently, Senior Advocates Anil Divan and Bhim Singh also made submissions before Attorney General Mukul Rohatgi replied to the arguments..Rohatgi argued that the NJAC Act and the Constitution (99th Amendment) Act cannot work without each other..“While the Amendment Act is the outline, the NJAC Act is the flesh and blood. But both have not been made functional as of now by the Executive.The stand of the Petitioners is that of an alarmist. That there will be a collision, the Executive will vote out judiciary etc…The Constitution as framed did not talk about Collegium or judges appointing judges. It is only after the Collegium took upon itself the power to appoint judges that it became primacy of judiciary.”.The AG also defended the composition of the NJAC, submitting that the appointment of two “eminent persons” was rested with a Committee composing the CJI, the Prime Minister and the Leader of Opposition and it will, therefore, not give any primacy to the Executive. He also said that the fears of three judges in the NJAC being out voted by the other three were misplaced..“There is no material to assume that three judges in the NJAC will vote one way and the other three members will vote the other way. If all the non – judicial members were Executive nominees, that could have been the case….Government wants the best people to be the judges. It is not the intention of the government to have a collision. This system will strengthen the judiciary and not weaken it. There is a mini Collegium within the NJAC also”, he said..He further went on to submit that the NJAC does not violate the “Basic Structure” doctrine..“Basic Structure is independence of Judiciary; Basic Structure is not judges appointing judges….The Act has been passed in the Parliament and has been ratified by twenty States. I am vigorously contesting the prayer for stay”, argued Rohatgi..The hearing will continue tomorrow and the matter is likely to be adjourned for a week after the Attorney General is heard..Solicitor General Ranjit Kumar and Additional Solicitor General PS Narasimha were also present in the court during the hearing.