New Delhi: Terming the collegium system of judges appointing judges as "illegal", Government contended in the Supreme Court on Wednesday that "everything is not well" with it. It also said that petitions challenging the validity of laws to replace the two-decade-old collegium system were "premature" as they have not come into force in the absence of notification.
Attorney General Mukul Rohatgi said, "Experience has shown that everything is not well with the collegium system...But for the moment, I will not go into the validity of the collegium system." He said "collegium system is illegal" and there have been widespread criticism of it including from the judges of the apex court.
Rohatgi said the new system that is likely to be introduced is a "healthy mixture of three judges and two members of civil society who are to be selected by a high-powered panel consisting of Prime Minister, Leader of Opposition or the Leader of the largest party in the Lok Sabha and the Chief Justice of India".
Rohatgi said there was no ground before the court to examine the validity of the laws and as such the challenge is "abstract" and "academic" based on "surmises and premises without any basis".
"Unless and until, the Central Government comes out with notification the law remains dormant," the Attorney General submitted before a bench comprising Justices A R Dave, J Chelameswar and M B Lokur.
The apex court is hearing the matter to decide whether petitions challenging the validity of the Constitutional Amendment Act & the National Judicial Appointments Commission (NJAC) Act were maintainable or not.
"Test the validity of the law when the law is brought into force and is capable of affecting the rights of the people," the AG submitted, adding that there was no cause of action to examine the law for which its opponents have sought a stay.
During the hearing, the Attorney General and senior advocate Fali S Nariman strongly differed on various aspects. Rohatgi said Nariman has questioned the Government for not adopting the model of five member collegium, recommended by the M N Venkatachaliah Commission, comprising three judges and two members from civil society.
The AG contended that Nariman, who appeared for one of the opponents, had also said that instead of going by the Commission's report, Government had opted a National Judicial Commission (NJC) with six members.
Nariman said it is a fact that there was a commission to review the Constitution under former Chief Justice of India, M N Venkatachaliah which also deliberated upon as to how judges should be appointed to higher judiciary and recommendation for NJC and its composition was discussed as an integral part to preserve the independence of judiciary.
Nariman said that his submission was given a different interpretation by the Attorney General. Rohatgi said, "I wanted to say that Justice Venkatachaliah wanted to have a commission and did not want that the entire power to rest only with the Chief Justice of India".
While Nariman was objecting to his submissions, the AG said Venkatachaliah is not a statute and "Parliament is not answerable to you or Venkatachaliah".
Rohatgi said that the change in the system was required and Justice Venkatachaliah also favoured five member commisison with three judges and two members of civil society in it, but in the present law, there will be six members. He elaborated the entire procedure under the NJAC Act and said the challenge to the law is "bereft of fact" and the allegation that the new system would lead to ganging up of executive was without basis and it would also be wrong to say that the best talent could only be discovered by the judges.
The Centre got the support from the Supreme Court Bar Association with its President and senior advocate Dushyant Dave also saying that this matter should not be heard at all as the law has not come into force. He also shared the view of Attorney General and Solicitor General that it was not a case for staying the operation of the law and if at all it has to be heard on merits, the matter should be referred to a larger bench of five judges.
The Supreme Court Advocates on Record Association (SCAORA) and Bar Association of India (BAI), represented by Nariman and Anil Divan respectively, opposed the Constitutional Amendment Act & National Judicial Appointments Commission (NJAC) Act and sought that direction be passed to maintain status quo otherwise the entire process would become irreversible.