NJAC: We are not against primacy, but exclusivity – SG Ranjit Kumar

With the Central government’s arguments stretching into the second week, Solicitor General Ranjit Kumar on Monday made his submissions before the Constitution Bench..Kumar commenced his defence by submitting that the Constitution needed to be looked at as a whole and not in parts or in isolation..He stated,. “The impact and effect on the whole of the Constitution needs to be looked at to understand the impact of the amendment.”.He quoted various judgments, arguing that the Constitution was not an “ephemeral document” and needs to take into account the changing conditions over time..Kumar further submitted that the Collegium system would not revive even if the NJAC is scrapped by the Supreme Court. He said,.“What has been destroyed cannot be revived. If your Lordships find the new amendments wanting, a new law will have to be framed. To restore the old system would amount to legislation.”.He went on to state that judge made law would come with its own set of problems and was legally impermissible. Therefore, substitution would imply repeal..Senior Advocate K Parasaran, appearing for the State of Rajasthan, stated that there seems to be a vertical line between the Judiciary on one side, and the Legislature and the Executive on the other which is causing all the problems. He argued that the new system was to ensure that people’s attitude cannot become anti-executive and pro-judiciary..Parasaran also submitted that this new law could not be struck down because of its allegedly peculiar nature and that the constitution of the NJAC in terms of its members; is an ideal one. He added that this Commission would also ensure that more women are represented in the judiciary, which is the need of the day in the country..Senior Advocate TR Andhyarujina, appearing for the State of Maharashtra, stated that after many years, the Parliament had passed an amendment, which was almost unanimous as it was ratified by 20 states. He submitted,.“Nowadays, in many countries, the appointment of judges is out of the hands of the executive or independent bodies such as a Commission. The appointment of judges by judges is not found in any other country in the word. There is a lack of appreciation of diversity [by the Collegium] which is ensured by the Commission.”.He argued that there was “nothing in any jurisprudence” which said that the independence of the judiciary can be secured only through a certain method of appointment. He said,.“A judge is ultimately independent because of his oath and because of his character.”.Subsequently, Additional Solicitor General Tushar Mehta argued for the State of Gujarat while Senior Advocate Ravindra Shrivastava appeared for the State of Chhattisgarh, who supported the creation of NJAC..In the meanwhile, the Supreme Court Bar Association (SCBA) too supported the Centre’s stand that the NJAC can’t be declared unconstitutional in the name of violation of independence of judiciary. However, the SCBA disagreed with the Centre’s submission that the collegium system would not get automatically revived if the NJAC was declared unconstitutional..The hearing will continue today.