Supreme Court refuses to entertain anti-JAC PILs; Says challenge is premature

The Supreme Court today refused to entertain five Public Interest Litigation (PIL) petitions challenging the Constitutional validity of the National Judicial Appointments Commission (NJAC)..A three judge Bench headed by Justice Anil R Dave and comprising Justices AK Sikri and Jasti Chelameswar held that the petitions are premature and the issues raised could be agitated at the appropriate stage..The hearing which lasted for one and half hours in a jam packed Court Room No. 4 witnessed inspiring arguments by Senior Advocate Fali Nariman and a brief and excited counter by Attorney General (AG) Mukul Rohatgi..Nariman, appearing for the Supreme Court Advocate-on-Record Association, contended that though he could not question the validity of the National Judicial Appointments Commission on merits at this stage, the very fact that it was introduced in the Parliament was unconstitutional since Article 124A – the enabling Constitutional provision under which it was introduced – was itself pending passage. He further argued that the question of whether a Constitutional Amendment Bill can be challenged in court before the president has given his assent to it is yet to be decided and requested that the matter be posted before a five judge Bench to decide these two issues..Former Additional Solicitor General Bishwajit Bhattacharya, however, chose to differ from Nariman’s arguments. Bhattacharya submitted that in the case of In Re The Special Courts Bill [(1979) 1 SCC 380] decided by a seven judge Bench of the Supreme Court, it was categorically laid down that a Bill pending in the Parliament was open to judcial review and that if the Court held that such a Bill is invalid, the Parliament need not spend any time over passing a Constitutionally invalid Bill..Advocate ML Sharma, another petitioner in the matter, submitted that he was challenging the parliamentary proceedings which had introduced the NJAC Bill because the Bill was introduced under Article 124A which was not in force..Replying to the arguments of Nariman, Bhattacharya and Sharma, AG Mukul Rohatgi argued that the petitions are premature..“All petitions are premature and are asking for deciding academic issues which may or may not arise…The Constitution Amendment Bill is undergoing a legislative process. To argue that the court should start examining it now is erroneous. The question of whether Constitutional Amendment is “law” or not is irrelevant for today. Similar petition in Telengana was not decided by this court due to same reason – that they were premature.”.Nariman then proceeded to reply to the AG..“My learned friend is arguing as if Golaknath has not been over ruled. Under Article 368, the president has to give his assent after the Legislature ratifies an amendment. There is no power to sent it back to the parliament. Articles 124 (2) and 217(1) continue to be in force. Then how can they introduce a bill in violation of these two Articles when the amending article 124A has not yet been passed?”.“There is a question to be decided but the issue is whether it should be done at this stage or later?”, said Justice Dave..“This is the stage your lordship since the parliament has already acted unconstitutionally and done something which they are not empowered to”, was Nariman’s reply..However, the Bench after a brief discussion proceeded to dismiss the petitions while granting the petitioners the liberty to agitate the matter at the appropriate stage.