The Centre on Wednesday pressed its onslaught against the 1993 judgment of the Supreme Court ushering in the Collegium system of judicial appointments, saying the 22-year-old verdict created an imperium in imperio (empire within an empire) within the Supreme Court.
The Centre said 1993 majority judgment (Second Judges case) by a nine-judge Bench managed to upset the delicate “equilibrium” achieved by the Constitution makers by giving CJI primacy over judicial appointments, forcing the apex court to counter that the government had never been shy of “putting its foot down” all these years despite the Collegium.
In its second day of arguments before a five-judge Constitution Bench headed by Justice J.S. Khehar, Attorney-General Mukul Rohatgi persisted that a larger Constitution Bench should hear the batch of petitions challenging the National Judicial Appointments Commission law replacing the Collegium system.
Having not yet begun to defend the legality of the NJAC law, Mr. Rohatgi instead focused his attack on the judgment of 1993 which, according to him, “thrust the pendulum” in favour of the CJI.
Mr. Rohatgi’s persistence is despite Justice Khehar making it clear on Tuesday that even if he proves the 1993 judgment wrong about CJI’s primacy, he would still not succeed as long as the government does not prove that the NJAC is as “equally independent” a mechanism for judicial appointments as the Collegium system it substitutes.
The AG argued that the Second Judges case and the Presidential Reference of 1998 (popularly called the Third Judges case) effectively made the CJI the final word on judicial appointments.
“When the CJI says there is no ground to block an appointment, the Executive, despite having objected, will have no further say,” Mr. Rohatgi argued.
Justice Kurian Joseph however disagreed, responding that the Executive had whenever it wanted put its foot down. “The Executive had the power to say ‘no this appointment is wrong… it is violative of guidelines’,” Justice Joseph observed.
But the AG argued that the 1993 judgment was oblivious to the checks and balances imposed by the parliament in the pre-Collegium days.
Noting that separation of powers is flexible, Mr. Rohatgi pointed out how the Executive plays a cardinal role in the appointment of important constitutional functionaries, including the Chief Election Commissioner.
“Can you say that just because the appointment procedure involves the Executive, the post is susceptible to potential abuse? Independence comes after appointment… the pivotal feature of independence comes after a person is appointed judge,” the AG submitted.
The Centre will continue arguments on Thursday.