New Delhi: Opponents of the law to replace the two-dacade-old collegium system of judges appointing judges on Tuesday pressed for referring the case to a five-judge Constitution Bench and rejected Centre’s stand that such opposition is “premature”.

As hearing commenced to decide the maintainability of a batch of pleas challenging the validity of legislations, they insisted that status quo be maintained, warning that otherwise the entire process would become irreversible.

Representational image. AFPRepresentational image. AFP

Representational image. AFP

The Supreme Court Advocates-on-Record Association (SCAORA) and Bar Association of India (BAI), represented by eminent jurists Fali Nariman and Anil Divan respectively, opposed the Constitutional Amendment Act & National Judicial Appointments Commission (NJAC) Act and sought that the issue be referred to a five-judge Constitution Bench.

A bench comprising justices A R Dave, J Chelameswar and M B Lokur has made it clear that it was not going into the merits of the matter and was confining the hearing to consider whether challenge to the legislations was maintainable or not.

They would also consider whether an interim order to stay their operation can be passed or not and thirdly can it be referred to a Constitution Bench.

The stand of SCORA and BAI is different from the Supreme Court Bar Association (SCBA), which has supported the central government saying the present legislation is a “brilliant mixture of executives, judiciary and the civil society” and the functioning of the present collegium system has always been shrouded in secrecy.

The SCORA and BAI along with some other advocates countered the submission of Attorney General Mukul Rohatgi that the challenge to the laws was premature in the absence of notification of the acts by saying that the NJAC Act has come into force with the assent of the President.

“As far as the Parliamentary law is concerned, the legislative process is complete as set out in Articles 79, 107 and 111 read together.

“The requirements of valid legislation are introduction and passage of bills in both Houses of Parliament (except money bills) and assent to the bills so passed by the President. The assent of the President completes the process of enactment of law,” senior advocate Anil Divan submitted. During the hearing, the AG said the seniority of judges in appointing the CJI has not been touched in the NJAC Act then “what is the fear?”

Responding to the plea that the laws “erode” the basic structure of the Constitution, he said, “The Constitution did not say that three judges will sit together and decide the appointment of judges.”

Senior advocate Dushyant Dave, who intervened on behalf of the Supreme Court Bar Association (SCBA), supported the Centre saying that the present legislation is a “brilliant mixture of executives, judiciary and the civil society”.

He also said the functioning of the collegium system has always been shrouded in secrecy and moreover, “there is no cause of action today as the Acts are not notified”.

Senior advocate T R Andhyarujina also supported Centre’s stand on the issue saying, “In no country of the world this system of judges appointing their brethren is operating”.

Yesterday, the apex court commenced the hearing on the validity of the Acts. The Centre, while defending the Acts, had “vigorously” opposed the pleas saying the new system will strengthen the system rather than weaken it.

Senior advocates Fali Nariman and Anil Divan, who were appearing for Supreme Court Advocates-on-Record Association (SCAORA) and an advocate respectively, had alleged that the NJAC Act would take away and knock down the independence of judiciary.

Rohatgi had countered their contention and termed the apprehension of the other side as “alarmist” and said that “there was no basis to say that executive will gang up”.

Nariman had stressed that fait accompli should not be allowed to take place and the order should be passed to maintain status quo by referring the matter before a five-judge constitution bench otherwise the entire exercise would become a “dodo”.

His view was shared by Divan, who had said the legislative exercise undertaken to replace the collegium system not only reduces and overrides judicial voice but it is drowned and looks like an irreversible situation.


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Refer NJAC case to five-judge Constitution Bench: Opponents of act tell SC