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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Here I ask that what is more important for the courts, then to maintain and deliver law and order. And when the complete soul of the justice delivery lies with the appointment of the quality judge, then who else then the jeweller can judge the gems and diamond best. And so let that be done by the jewelers (Court's Collegium System). And if there are any discrepancies that can be sorted out by the consent of the court and for which the government is free to bring it to the courts notice. The same could also have been told by the court to the Sr. Counsel K Parasan that there are lot of other jobs and issues in the burning country that are to be looked by the elected governments and so leave this appointment of the judges to us only as we will do it wisely, with perfection, with “Zero defect” and more transparency.
Though here it also agreed as told by Attorney General Mukul Rohtagi that the public who is the tax payer and your (judges) Salary comes from him(Public) and so he(public) has full right to know that who is going to be the judge. Here in addition it also becomes necessary to mention that at the same time the governments are also accountable to the public and before making intrusion to the court collegium, government must be strictly warned and directly to introduce a bill for their accountability to the public. It is a bitter truth that who so came to the power forgets the promises and assurances made with the public. And these sort of the practices are going freely without checks, neither the govt. at their own nor the courts even did anything in this regard to the best of my knowledge and belief. And this breach of trust, making false promises for gaining profits etc must be treated as criminal conspiracy along with other possible sections. The courts must direct the govt. all over the country and make them accountable to the public.
The courts must ask Govt. to do their part of the duties rather than intruding in other's (Apex Court) boundaries. Though I also agree that the people appointed in the courts are humans and those who appoint are also so. And so their are possibilities of the mistakes been made due to negligence, some personal reasons, human ills(greed, profit bearing, backing form duties etc.). And is also applicable with the politicians as well as the common man. So what is the strict need of time is not changing the system but transforming the system by adopting complete transparency(to an extent that will not hinder smooth working) along with equality before law. And if this also fail then may go for substitution of the system. No space for partiality as it adheres to the corruption, injustice and many other sins that the country is fighting from long past decades and will suffer the same unless and until some strict measures are taken for the transformation of each and every minute particle involved in system. Though it seems as if I am dreaming as this may come true or not is doubted by me. Most of the people today have knowledge and caliber to debate, but what is found missing is the honesty that is needed to judge & act accordingly.
I am not afraid to say that judges are also human and so are the politicians and so there remain always a space for mistakes and taking advantage for themselves. And so a check is needed for all and so is the accountability.
Here Court was reminded by the BJP representatives that court should concentrate on justice delivery rather to keep themselves involved in the appointment of the higher judiciary, it has become quite necessary to draw your kind attention that has the present and the past governments followed their "Raj Dharma". The answer should neither be asked from the courts nor from the politicians but should be asked from the public at the ground "Zero". Its the public who has to bear the heat of all the amendments, changed laws, changed government, changed judiciary. The answer from general public who is just bothered with the issue of truth, right or wrong(not associated with any political Party or group) will definitely find the action and policies of the government illogical, inappropriate and if somewhere they were good they were not handled properly.
There are numerous incidents that come on daily basis through the media that how the general public and the truth is been harassed and demoralized. But does the elected governments of the country have become deaf that can't hear the citizen's screaming. The fact is the what ever is been faced by the public is well known to them but they pretend to maximum of having no knowledge of the same. And if by mistake the things are brought to their(Government) knowledge they pick their favorable part from the whole story and leave the other matter as it is.
I am not blaming anybody but it is the fact that the politicians and politics are to be made accountable to the public and if this will be done no need of NJAC. If thereafter arises any need then the same can be looked into as already stated in this discussion. Where there is a need and possibility of the improvement of the system, judiciary, Government that must be handled with responsibility by their bosses first. And if then too lapses are found then its the court which should take stern action against the guilty.
It is a fact that same cases have been come through media and other sources which have stated that the judiciary has adopted wrong practices and that needed to be checked. And it may be agreed by many that improvement should be made. But as also stated by the court is also right that it is not necessary that if one person in the system has adopted something wrong then everything is rotten. Yes some sort of amendments be made by he consent of the court, by the way of surveys, by advice through the bureaucrats and others. But during all this the dignity of the courts be maintained as till today though shaken, innocent people of the country are still seeing the courts as the last hope for justice delivery. And it is believed and expected that the Court's Boss(Chief Justice) will look into the matter at its own.
All of us are well aware of the fact "What is might is also right" though it should not be and it should be that the right should be always be right, whether adopted by weak or strong. As mostly might is always right, one harsh thing seems most necessary to be placed here. We general public of the country may not be well aware of the end judgement of this NJAC-Collegium controversy, but there are probabilities that may the final decision be known to the court bench as well as to the government and this all this debate that is going in the courts is just an eyewash to the general public. I have reasons and that may also amount to the contempt of the court, for which I am not at all afraid. And I have also stated this from a point of view of a common man who is dying in day to day life and if dead body(here by way of passing a contempt of court) that will not bother. As common man is forced to live and die each and every moment. And whether the Collegium exists or NJAC supercedes then again, none neither from the higher judiciary nor from the politics is going to bear any consequences whether good or bad. But those honest in the judiciary as well as in Politics must come out for the common good cause that is specially awaited for this auspicious occassion of fight for truth.
Written-16/06/2015
thewire.in/2015/06/15/will-the-collegium-revive-itself-if-the-supreme-court-voids-the-njac/
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