The Centre on Thursday highlighted how the Supreme Court Collegium backed Justice N. Kannadasan's appointment as a judge of the Madras High Court in the past, despite fierce opposition from both the government and the President. This was cited as an instance of the highest judiciary overwhelming the executive’s objections over judicial appointments for the past 22 years.
“The Supreme Court collegium sent its recommendation for his [Justice Kannadasan’s] appointment as judge… the government opposed it. There was even an endorsement by the President in his own hand on the file, saying the appointment would not be appropriate. But when the file was sent back, the collegium reiterated it and he was appointed as judge,” Attorney General Mukul Rohatgi told a five-judge Constitution Bench.
The Bench headed by Justice J.S. Khehar is hearing a batch of petitions challenging the National Judicial Appointments Commission law replacing the collegium system.
Mr. Rohatgi pointed out that it took the collegium two years to “realise its mistake” following adverse Intelligence Bureau’s reports about the judge’s conduct. “Our doubts proved to be correct,” the A-G said.
Mr. Rohatgi recounted this instance while responding to a query from the Bench whether there was any situation in which the President had opposed the Supreme Court collegium’s recommendation of a name. The A-G has been using such past instances of judicial appointments to insist that the question of the constitutionality of the NJAC law should be referred to a larger bench of nine or 11 judges.
He submitted that the nine-bench judgment in the Second Judges case of 1993 triggered an opaque mechanism of judicial appointments which stifled democracy.
Eminent counsel K.K. Venugopal, K. Parasaran and Ravindra K. Srivastava, appearing for various States which have ratified the new law, favoured the plea of the Centre that the matter be sent to larger bench.
Mr. Rohatgi submitted that the legality of the collegium system needed to be decided upon before the merits of the NJAC were considered.
But Justices Khehar and Madan B. Lokur contested the top law officer’s argument for a referral.
“You brought in a new law to wipe out the nine-bench judgment and the collegium system. So as of now, the collegium does not exist. If that is the case, what is the need for referral to a higher bench?” Justice Lokur asked.
To this, the A-G said the Centre is “entitled” to ask for a reference to a larger bench while still holding that the 1993 judgment did not hold field.
The A-G's reply saw senior advocate Fali Nariman counter that the Centre cannot argue both ways. “On the one side, you are saying the effect of the 1993 judgment is wiped out with this new law. On the other, you still want a reference,” Mr. Nariman said.
A heated exchange ensued with Justice Khehar finally declaring that his bench would now compartmentalise the hearing on the petitions.
Justice Khehar said the court would now first decide on the referral to a larger bench, and only then, if required, would it hear on the merits of the NJAC law.
