The NDA government today questioned the primacy of the Chief Justice of India (CJI) and the judiciary in appointments to the higher courts’ judiciary but the Supreme Court said that having accepted the collegium system in 1998, the government couldn’t go back on it now.

“If the primacy of CJI in judicial appointment was not there in the constitution or in the constituent assembly debates, the interpretation of the constitutional provision by the 1993 judgment (which accorded the CJI primacy) has to be re-heard by the nine judges bench,” argued Attorney General Mukul Rohatgi before a five-judge constitution bench.

At this, the bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice AK Goel told him “that when (the 1993) judgment was under consideration (in 1998) at your behest, you had accepted it (collegium system).”

There was a National Democratic Alliance government led by Atal Bihari Vajpayee in 1998.

“That would be a dangerous” that every time with a change of regime, judicial pronouncements that have been accepted and attained finality are questioned, the court said telling the attorney general that there was no challenge to 1993 judgment he was seeking to question.

Justice Khehar told Rohatgi that instead of questioning the correctness of the 1993 judgment which was not under challenge, he should better tell the court how the National Judicial Appointment Commission (NJAC) was a better alternative.

“You should show us that this alternate system is also independent and we will accept it,” the court asked Rohatgi, telling him that “the citizen of the country is worried that the judges in the courts are impartial and is concerned that a stakeholder (government in litigations before the court) should not participate in the selection process (of judges)” as it may prejudice his cause before the courts.

Describing CJI as one among the other apex court judges and under the constitution, it being “imperative to consult him on judicial appointments”, Rohatgi told the bench that if any primacy was accorded to the views of the CJI, then it would destroy consultation with other judges as provided under the constitution’s article 124.

Noting “consultation” with the CJI in the matter of judicial appointment should be treated as “concurrence” had not found favour even with the framers of the constitution in the constituent assembly, he mentioned the specific move that was turned down in this regard.

“CJI’s views does not have primacy when contrasted with the views of other judges of the apex court,” Rohatgi said, leading Justice Joseph to observe: “The way you read article 124 it would mean the primacy of the executive in judicial appointments.”

Defending the government’s position to replace the collegium system with NJAC, Rohatgi said that separation of power did not mean any “watertight compartmentalisation” of judicial power in the matter of appointment of judges.

Resuming his inclusive arguments from Friday, senior counsel Rajeev Dhavan told the court that “NJAC was a hotchpotch of the worst possible kind and had nothing to do with the independence of judiciary” as there is an element of executive involvement in the selection of judges.

Responding to a query by Justice Goel whether appointment of judges was within the “judicial power” or executive power” or if it was a “judicial function”, he said that “it was essentially a judicial function with executive participation.”

Pointing gaps in the NJAC as nowhere it is mentioned that NJAC could not meet without all the six members present, Dhavan said that the “selection process lacks criteria” and as far as one eminent member from reserved category was concerned, it was not clear who will get nominated or when their turn will come.

He also contended said that the reservation in NJAC was contrary to constitutional provisions as far as judicial appointments were concerned.

Describing NJAC as a “khichdi”, Dhavan wondered if there could be a situation where three members may sit and decide on appointments to the higher judiciary.