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If you strike NJAC down, collegium shan't become as powerful as you possibly imagine: Gov't to SC

The central government on Monday told the Supreme Court that any invalidation of the NJAC for the appointment of judges to the higher judiciary would not result in the automatic resurrection of the collegium system of appointment.

“It (collegium system) can’t get revived on its own,” Solicitor General Ranjit Kumar told the constitution bench comprising Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel, contending that in case the court holds against the National Judicial Appointment Commission’s validity, then parliament will step in to address the new situation.

“Court can’t legislate” and “this would amount to court barring the parliament from enacting the law. If constitution’s 99th amendment (bringing in NJAC) goes, then the original article 124 of the constitution (dealing the Supreme Court and the appointment of judges) can’t be revived,” he said.

His contention came as the court asked whether it could not restore the original article, even if there is a violation of the basic structure of the constitution in the appointment of judges through NJAC mechanism.

The constitution bench is hearing a batch of 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 Act, 2014.

Apparently unimpressed by the Solicitor General’s contention, the court asked if the amendment to article 124 introducing NJAC is struck down, would the NJAC still remain a part of the constitution.

“This would make the provision (article 124) truncated and meaningless,” the court said.

“If you (parliament) omits a provision and substitutes it with something else (read NJAC) and that substitution is struck down by the court, are you saying that it (article 124) would remain omitted (with dotted lines) and would not restored to original shape (till parliament steps in to remove the hiatus). Such a situation would render the provision truncated and meaningless,” it said.

It asked the if the Solicitor General was saying that even for restoring the original provision in the constitution, after the court has struck down the amended provision, the parliament would have to undertake another amendment of the constitution.

Addressing the concern, Ranjit Kumar told the court the issue whether striking down of an amendment to a constitutional provision would result in automatic restoration of original provision is pending to be addressed by a nine-judge constitution bench since it was referred by a seven-judge bench February 20, 2002.

Appearing for one of the Bharatiya Janata Party-ruled states, senior counsel K Prasaran told the court that the judges were already overburdened with their judicial work and they should not further over-burden themselves with the task of appointing judges.

Let the executive and parliament, which are accountable to the people, do the job of appointing the judges and be answerable for that and the court should limit itself for deciding the cases, he argued.

Defending the presence of two eminent people on the NJAC, Parasaran said that they would be appointed by the prime minister, leader of opposition and the chief justice of India - three high ranking constitutional functionaries - and if they fail in their task, then the constitution will fail.

He will continue his arguments on Tuesday.

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