NEW DELHI: The Supreme Court on Tuesday refused immediate reference to an 11-judge bench the adjudication of constitutional validity of the National Judicial Appointments Commission (NJAC) Act and said its five-judge bench would hear arguments on both the NJAC as well as reference to a larger bench.

The five-judge bench of Justices J S Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel held a chamber meeting for just 37 minutes, from 11 am to 11.37 am, and came out to announce its decision which deflated the NDA government’s week-long arguments for referring the adjudication of NJAC’s constitutional validity to an 11-judge bench.

Attorney general Mukul Rohatgi and solicitor general Ranjit Kumar for the Centre and senior advocates K K Venugopal, K Parasaran and Harish Salve for BJP-ruled states had conveyed in unison to the court that the adjudication would be a momentous occasion in constitutional history which required hearing by a larger bench to make the decision authoritative.

After deciding to hear the arguments on merit as well as the reference issue together for a consolidated decision, the bench said all five judges were ready to forego their vacation to hear the matter. It put the AG in a difficult situation and required a lot of juggling to finally make him agree to curtail his vacation and commence arguments on June 8. The court also extended till further orders the tenure of all HC additional judges whose two-year terms were about to expire. This relief would not be available to those retiring.

Referring to the AG’s argument that the striking down of NJAC would not revive a dead “collegium” system, Fali Nariman asked, “Who killed the collegium? It is the Centre which has done it. If a state government had done it, the SC would not have hesitated for a second to stay such a decision. If the matter is referred to a larger bench, it would be in the discretionary domain of the CJI to constitute a bench. Why create such uncertainty. There are judges to be appointed to high courts and the Supreme Court. Why keep the appointment process frozen?” He accused the NDA government of being “dictatorial” and “non-secular” in its approach and attempting to destroy judicial independence.

After the bench passed the order, the AG demanded to know why the court decided to hear the matter by passing a cryptic order when it had promised on Monday to give a reasoned order on the issue of reference.

The bench was blunt. “We are very, very concerned about the vacuum being created. We are concerned about the importance of the matter since Parliament has enacted the law and states have ratified it. It would not be proper to stay the law. But why create a vacuum in the appointment process? The Centre is not agreeable to the middle path. If completing the arguments will take months, then there will be a lot of vacancies in high courts and even in SC.

TOI | May 13, 2015

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