Solicitor-General Ranjit Kumar on Monday asked the Supreme Court to keep petitions challenging the constitutionality of the National Judicial Appointment Commission (NJAC) law in abeyance for five years.
This suggestion comes a day after Attorney-General Mukul Rohatgi concluded his arguments for the Centre. Mr. Rohatgi had said the NJAC dispelled the shroud of mystery over judicial appointments and ushers in an age of transparency.
But Mr. Kumar, also for the Centre, told a five-judge Bench headed by Justice J.S. Khehar that it is “premature” now for the court to test the new law. In fact, the S-G said the new law should be given a breathing space of five years and allowed to work. Incidentally, this was Mr. Rohatgi’s argument in the initial days of the NJAC hearings before he shifted gears after the Bench did not see eye to eye with the proposal.
“We can adjourn the petitions sine die for next five years till we see whether this works or not,” Mr. Kumar suggested.
But Justice Madan B. Lokur pointed out that the NJAC would still not be able to function even if they adjourned the petitions for five years.
When asked why, Justice Lokur pointed out that the Chief Justice of India, who is the chairperson of the NJAC, has already written to the Prime Minister that he would not participate in the NJAC as long as the question of validity of the law is pending before the Supreme Court.
Caught in a fix, Mr. Kumar then said the petitions could be closed for now until “someone” re-opens this issue in case of an abuse.
“So now you want us to close this as premature?” Justice Kurian Joseph asked.
‘Hit-and-trial method’“All we want you to do is prove the validity of NJAC and not tell us to let you try out your hit-and-trial method,” Justice Khehar told the S-G.
During the day-long hearing, Mr. Kumar stressed that striking down NJAC would not bring the Collegium back and the judiciary would have to wait till Parliament fills the vacuum by enacting a new law.
Mr. Kumar was endeavouring to respond to the opinion voiced by a five-judge Constitution Bench led by Justice Khehar that if the amended Article 124 of the Constitution is struck down, the Collegium will spring back to life.
Justice Lokur then asked Mr. Kumar as to what will fill the vacuum in a situation where the court repeals NJAC but the Collegium is not revived.
“If we repeal, there is no compulsion on you to enact the law afresh... That means you have absolute powers in judicial appointments [with neither NJAC nor Collegium in place]. This was never the intent of the Constitution makers,” Justice Lokur said.
