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AORs argue that there's no need to refer NJAC plea to a larger bench

The Supreme Court Advocate on Record Association (SCAORA) Friday opposed the government’s plea for referring to a larger bench the challenge to the NJAC contending that the issue before the court was whether it was in conformity with the basic structure of the constitution or not.

The SCAORA told the court that both, the 1993 “second judges” case which gave primacy to judiciary in the judicial appointment and the subsequent 1998 unanimous opinion reaffirming it, stood knocked out by the constitutional amendment act, 2014 and the National Judicial Appointment Commission Act, 2014.

The court was told that issue before the court was not whether the primacy of the judiciary in judicial appointment was embedded in the NJAC but whether the appointment of judges through NJAC upheld the independence of judiciary which was the part of the basic structure of the constitution.

Telling this to the constitution bench of Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel, senior counsel Fali Nariman, appearing for SCAORA, told the court that the question to be examined is whether NJAC mechanism violated the basic structure of the constitution and the same can be done by the five judges bench instread of referring it to nine or 11 judge bench.

Reading the amended article 124A of the constitution, Nariman said that entire basis of primacy of judiciary or that of the collegium headed by the chief justice of India as given by the 1993 second judges judgment has been taken away by 2014 amendment to the constitution.

Trying to the show the court what the government was upto, he said that even if the case is referred to a 11-judge bench and they uphold the 1993 judgment giving primacy to judiciary in judicial appointmen, it would not affect the government as foundation for the primacy of judiciary had been erased from the constitution.

“Even if 11 judges upholds the nine judges (1993 second judges case), they (government) will come and say that the ‘consultation’ with the chief justice has gone under the new scheme”, Nariman told the court adding that government was keeping another string in its bow to spring it at that stage.

“They have an additional string in their bow and that additional string in their bow should have come first,” Nariman told the court.

At this Justice Goel said that the “simple issue is that does the constitution amendment and NJAC violates the basic structure of the constitution and we have to test the new scheme on the question of independence of judiciary and basic structure of the constitution”.

Responding to a question from Justice Kurian on the functioning of the collegium system, Nariman said: “There may be lot to say as criticism (of the collegium system) but here we are not in a seminar. We are debating a constitutional law.”

Earlier senior counsel Harish Salve appearing for Haryana urged the court that in order to give weight to the entire consideration of the issue, the matter should be referred to larger bench of nine or 11 judges.

He said that the issue involved - the appointment of judges - was pivotal to the democracy and for an authoritative pronouncement it should be referred to larger bench.

Appearing as an intervener, senior counsel TR Andhyarujina wondered could it ever be a case that in order to uphold the independence of judiciary, the appointment of judgers should rest with the judiciary. He said that this view finds no support either in the constitution or in any jurisdiction in any other countries.

“If appointment of judges by the judges is a part of the basic structure, then 1993 judgment needs to be relooked,” he said adding that jurists world over has described this as an appropriation of judicial powers by the judiciary.

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