Govt to defend methodology to appoint higher judiciary

New Delhi: The government will tell the Supreme Court on Monday why it junked the collegium system for the appointment of judges to the higher judiciary, replacing it with the National Judicial Appointment Commission (NJAC).

The move comes as the constitution bench resumes hearing on the challenge to the NJAC's validity on Monday, judicial sources say.

Having made an unsuccessful attempt to make the court revisit its 1993 second judges case verdict, giving primacy to the judiciary in the appointments and the 1998 answer to the Presidential reference affirming it, the Central government will, for the first time, address the challenge to the NJAC's validity.

The apex court's constitution bench, comprising Justices Jagdish Singh Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel is hearing petitions, including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others challenging the constitutional validity of the constitution's Ninety Nine Amendment Act, 2014 and NJAC, 2014.

Declining the central government's plea for revisiting the 1993 judgment, giving primacy to the collegium headed by the chief justice in the apportionment of judges to higher judiciary as a "preliminary issue", the bench said on May 12: "The prayer by the attorney general for disposing off the issue with reference to the need for revisiting the two judgments, rendered in 1993 and 1998, to be decided first as preliminary issue before hearing the main matter is declined."

The petitioners have already addressed the court on the merit of their opposition to the NJAC and it being contrary to judicial independence - part of the constitution's basic structure.

The petitioners contend that the law minister's presence, vagueness about the profile of the two eminent people in NJAC and the provision that any two people can veto any name as judge or even the elevation of the senior most apex court judge as the chief justice of India (CJI) upon the retirement of the incumbent violated the judiciary's independence.

Initially, the matter was heard by Justices Anil R. Dave, J. Chelameswar and Madan B. Lokur. After four days, they referred it to a larger bench as it involved the "substantial questions of law as to the interpretation of the constitution".

However, the very first hearing on April 15 by the constitution bench was adjourned as senior counsel Fali Nariman, appearing for SCAORA, told Justice Dave to stay away from the NJAC till he was hearing the challenge to its validity. At present, besides Chief Justice H.L. Dattu - who would head the NJAC when it is operationalised - the other two senior most judges are T.S. Thakur and Anil R. Dave.

The first hearing on April 21 by the constitution bench, now headed by Justice Jagdish Singh Khehar with Justices J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel ran into yet another roadblock after advocate Mathew J. Nedumparaa objected to the presence of Justice Khehar on the grounds of his being part of the apex court collegium.

This hurdle was cleared on April 22 when it was clarified that Justice Khehar would not involve himself with the collegium so long as he was presiding over the bench hearing the challenge to the constitutional validity of the NJAC Act and constitutional amendment.

Since then, the constitution bench had detailed hearings spread over 11 days. On May 12 the court decided to have the next round of hearings from June 8 when the government and others supporting the NJAC would advance their arguments in its defence.

The constitution's Ninety Nine Amendment Act, 2014 and the National Judicial Appointment Commission Act, 2014 were passed by parliament in August 2014 and given assent to by President Pranab Mukherjee.