Supreme Court reserves judgment in challenge to the NJAC

In what is unarguably the most important case argued in the country in the last two decades, the Supreme Court has reserved its judgment in the challenge to the Constitutional validity of the National Judicial Appointments Commission (NJAC)..After 31 days of hearing, a Constitution Bench of the Supreme Court today reserved the judgment while extending the tenure of Additional Judges of High Courts till the Court pronounces its judgment. The Bench comprised of the following judges – Justice JS Khehar, Justice Madan B Lokur, Justice Jasti Chelameswar, Justice Kurian Joseph and Justice Adarsh Kumar Goel..There were a host of petitioners in the case – the Supreme Court Advocates-on-Record Association (SCAORA) being the lead petitioner. The case was first argued before a three judge Bench, which had then referred it to a Constitution Bench. The Constitution Bench alone had heard the matter for 31 days..In the last one and a half weeks, the petitioners (SCAORA) had responded to the Central government’s arguments which had concluded during the summer vacation. Subsequently, the Attorney General Mukul Rohatgi had once again replied to the petitioners..The case saw the senior most lawyers of the Supreme Court pitted against each other in what could turn out to be a judgment with significant political ramifications..Senior Advocates including Fali Nariman, Ram Jethmalani, Anil Divan, Arvind Datar and KK Venugopal had argued the matter. The Central government was represented by Attorney General Mukul Rohatgi, Solicitor General Ranjit Kumar and Additional Solicitor General (ASG) PS Narasimha..In his concluding arguments, Anil Divan had argued that even the NJAC could result in horse trading between the Judiciary and the Executive..“You allow two people of mine and I will allow two of yours…the way the medium has been framed leaves the door open for subverting the judiciary and the judges in the NJAC. Today the way the mechanism would be operated through the NJAC, there would be interference by the executive and the legislature in the independence of the Judiciary.”.To this the Attorney General had responded that,.“The judges (in the NJAC) are the three senior most of the Supreme Court. If you expect them to buckle, then everything will buckle.”.Subsequently, Ram Jethmalani had come down strongly upon the Attorney General for relying on examples of Pakistan, Australia and Sri Lanka..“If a previous decision of this court by a Bench of equivalent strength has come to the conclusion that this (judicial primacy) is a basic feature, then it cannot be abrogated or overruled. If that is the case, then we have to see if the 99th amendment abrogates the basic feature of the Constitution.The AG, in his submissions, has stated that Pakistan, Australia and Ceylon have executive primacy in judges’ appointment. I feel insulted that this kind of submissions are being made before this Court. This court, in an illustrious case, had laid down the other way round.”.Jethmalani also attacked the loosely worded “eminent persons” in the NJAC..“Who is an eminent person? Every person accused in 2G scam used to be an eminent person until they were accused of involvement in the scam.”.Former ASG Bishwajit Bhattacharya asserted that Article 124, as it stood for the first 65 years, is itself a basic structure of the Constitution and cannot be altered by amendment..The Attorney General in his concluding arguments had stressed upon the Parliament’s wisdom and argued that the NJAC does not impinge upon the primacy of the Judiciary in appointment of judges..“At the end of the day, it is the wisdom of the Parliament (in creating NJAC). And just because the NJAC has three judges, one person from Executive and two eminent persons, does it become bad? It is not five members from the Executive and one judge. Three judges and one from the Executive were there in the earlier system also. Now two members from the civil society have been added.”.When Justice Kurian Joseph questioned him on why there could not be a code/ rules for appointment of judges by the NJAC, Rohatgi said that, it would be for the Parliament to decide. He replied,.“That is for the Parliament to decide…Parliament is the supreme law making body. It makes the Constitution, it breaks the Constitution and it amends the Constitution….For the independence of the Judiciary, the check is not on the Parliament, the check is on the power of the Executive. The Parliament has, in fact, created all this.”.The Bench then reserved its judgment. The case has been closely watched by legal pundits and the public alike as it is being seen as a tussle between a powerful Central government with absolute majority in the Parliament and a Supreme Court which has, since 1993, remained virtually unaccountable, even to the Constitution..You can read a roundup of the legal arguments here. .More about the law officers who defended the case for the Centre and a timeline of the case till the final hearing commenced can be read here.