The Central government has told the Supreme Court that two-decade old Collegium system is 'dead and buried forever' and it cannot be revived even if the five-judge Constitution Bench of the top court quashes the new National Judicial Appointments Commission (NJAC).
“Even if it (NJAC) is quashed, what is dead cannot be revived. You cannot go back to the old system. There is no question of automatic revival of the old system and the Parliament will sit again to re-legislate,” Attorney General Mukul Rohatgi told a five-judge Bench led by Justice J S Khehar. The AG added, “The original Article 124 has now disappeared from the Constitution. It is dead, buried and gone forever. It cannot be resurrected. It won’t come to life even after this Bench quashes the amendment and holds that the NJAC is unconstitutional.”
Attorney General Mukul Rohatgi urged upon the bench led by Justice Jagdish Singh Khehar to refer the matter to a nine or 11-judge bench for reconsideration of 1993 judgment which took away from the government, the power of appointing judges and vested it with an apex court Collegium headed by the Chief Justice of India. He contended that the Parliament will have to frame another legislation to deal with the appointment of judges in case the constitutional amendment and the NJAC are held to be bad in law.
“In all proprietary, this case must be decided by a bench of nine or eleven judges since all such cases were decided by a bench of nine judges. Let there be an authoritative pronouncement by a proper bench. It is too important a question, why should five judges burden themselves with it,” argued the AG.
Senior counsel Fali Nariman, who is appearing for the Supreme Court Advocate on Record Association, which is opposing the NJAC, argued before the constitution bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel that even if after the reconsideration, the bench of nine judges or eleven judges reiterates the position taken by nine judges in 1993, it was not going to make any material difference.
The court has asked the Attorney General to consider the fate of additional judges of the High Courts whose tenure will be coming to an end during the hearing of the batch of petitions challenging the NJAC.