The challenge to the constitutional validity of the act setting up the National Judicial Appointment Commission and the supporting constitutional amendment must be heard by a larger bench of nine or 11 judges, Attorney General Mukul Rohatgi told the Supreme Court today.

Addressing the constitution bench comprising Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice AK Goel in the course of the hearing, Rohatgi said that if the challenge to NJAC has to be examined in context of “primacy of judiciary” in the appointment of judges to higher judiciary, then it has to go to an 11-judge bench.

He noted the primacy of judiciary in the judicial appointment - that gave birth to collegium system - was decided by a nine-judge bench in 1993 and if this question has to be gone into, then it can’t be by a five-judge bench but by larger bench of 11 judges.

The view that was placed before the constitution bench by senior counsel and former additional solicitor general Bishwajit Bhattacharyya on Monday, found support from senior counsel Fali Nariman and Rohatgi on Tuesday.

Meanwhile, Rohatgi, assailing the submission by senior counsel Anil Divan on the dilution of primacy of the judiciary in judicial appointment, wondered how in the interpretation of the constitution’s article 124 (establishment and constitution of Supreme Court) dealing with judicial appointments, the concept of primacy of judiciary was plucked out of air.

He contended that for 40 years, the original article 124, which involved only consultation with the chief justice worked very well and “I dare say it produced some of the best judges”.

As Divan told the court that in the selection of two eminent persons to be on the NJAC, the political voice was pronounced, the court asked where was political voice as there was the prime minister and the leader of opposition besides the chief justice of India.

In another important observation, the court on Tuesday said that senior-most judge of the apex court becoming the chief justice of India upon the retirement of the incumbent was part of the independence of judiciary which in turn was the part of the basic structure of the constitution.

The court noted that in India, they have accepted seniority as the basis of elevation and not just merit and also expressed apprehension that in the absence of seniority not being a criteria, there may be a situation where a judge down the line uses influence for his way to the top.