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Rediff.com  » News » SC takes strong note of phrase 'judges appointing judges'

SC takes strong note of phrase 'judges appointing judges'

Source: PTI
June 08, 2015 22:11 IST
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The Supreme Court on Monday witnessed sharp exchanges when it took exception to Attorney General Mukul Rohatgi using the phrase "judges appointing judges" to attack the collegium system and observing that B R Ambedkar would have turned in his grave at the way the power was taken away from the executive.

The five-member constitution bench headed by Justice J S Khehar also hit back saying the constitution framer would have turned in his grave many times "with all that is happening".

The interesting exchanges took place as arguments resumed in the case challenging the National Judicial Appointment Commission Act which seeks to replace the two-decade-old collegium system.

"What is this? You (Centre) use it just because this is a catchy phrase. It cannot be like that. The President appoints the judges," said the bench.

The bench's observation came when Rohatgi said "the Constitution framers did not think and envisage that the judges will appoint judges. This (collegium) system was foreign to the Constitution".

The bench also questioned Rohatgi for referring to the debates in the constituent assembly on articles relating to appointment in higher judiciary when Art 124 (establishment and constitution of Supreme Court) is already amended.

The attorney general said that it was being referred to show the intent of the framers that the decision to appoint judges would be an "executive" one and it was "turned upside down" in 1993.

"Ambedkar would have turned in his grave considering what happened to Article 124 in 1993," Rohatgi said.

"With all that is happening, Ambedkar would have, by now, turned many times," hit back the bench, which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.

Rohatgi said that it was the will of the people to have a "transparent, accountable and criteria-based" appointment of judges through the NJAC.

He described the junked collegium system akin to "you scratch my back, I will scratch yours".

During the hearing, the bench referred to Articles 74 (council of ministers to aid and advise President) and 124 (establishment and constitution of Supreme Court) and asked the Centre to distinguish the role of the President under both the provisions.

"Under Article 74, the President 'shall' exercise his powers on the aid and advice of the council of ministers," the bench said, adding that the primacy lie with the executive.

The bench then referred to Article 124 and asked Rohatgi to clarify as to whether does the same principle applies in the appointment of judges and where the judiciary has the primacy.

"The appointment of judges is an executive function and the President acts on the aid and advice of the council of ministers. The President does not act as per his discretion," Rohatgi said, adding, "it is not as if, the first citizen of the country is banned from consulting, on his own, any judges. The role of the President, really speaking, is ceremonial."

When the AG tried refer to a judgement on the issue, the bench said, "Do not answer off-the-cuff. Take your time."

Rohatgi said the appointment of judges was purely an executive function till 1993 and the provisions said that there would be "mandatory" consultation with the Chief Justice of India.

"In any event, the Second Judges Case/Third Judges Case, evolved a new system of a collegium-based appointment in response to particular exigencies at that time, a system which did not exist in the Constitution," he said.

He then referred to sequence of events prior to the introduction of collegium system.

"The sequitur of this analysis in the instant case is that there were 'compelling forces' in terms of executive over-reach in appointments, starting with the supersession of judges in 1973, mass transfer of judges in the Emergency in 1976, a second supersession in 1977 and continuing itinerant interference over the 1980s, which provided the context for the creation of the judicial collegium and vesting primacy in the judiciary in the matter of appointments in the Second Judges' case.

"A system devised to address particular concerns cannot assume permanence for all times to come. This is especially because the collegium having operated for over two decades has meant that different issues and concerns have arisen, which Parliament has now in its wisdom decided to address," he said.

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