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Centre, SC spar over primacy of CJI in judicial appointments

May,5,2015: Attorney General Mukul Rohatgi had submitted that independence of judiciary did not mean that the CJI and his collegium had primacy in appointment and transfer of judges.

Supreme Court of India
Supreme Court of India

Mercury shot up in Court 4 of the Supreme Court as the highest judiciary engaged in a verbal duel with the Centre claiming that the Supreme Court tweaked the "original" Constitution over 22 years ago to give Chief Justice of India and the Collegium primacy over the government to appoint judges.

Temperature rose phenomenally with the five-judge bench led by Justice J.S. Khehar, deciding the validity of the National Judicial Appointments Commission law, hotly contesting Attorney General Mukul Rohatgi's opening argument that there was not a word about judicial primacy in the original Constitution as drafted by the Fathers.

Mr. Rohatgi submitted that independence of judiciary did not mean that the CJI and his collegium had the final say or primacy in appointment and transfer of judges.

"Independence of judiciary was not an insulated concept," Mr. Rohatgi submitted.

He blamed the 1993 judgment by a nine-judge bench which ushered in the Collegium system of judicial appointments giving CJI's "concurrence" primacy over all others.

Mr. Rohatgi said the 1993 verdict needed "reconsideration", hinting that the challenge to the NJAC law should be decided by a larger bench and not by this one.

But the bench was in no mood to agree, instead turned it combative.

"When the 1993 judgment came and later in the Presidential Reference, you… the government, was the first one to agree about judicial primacy. You accepted this as your final position… You can't change your position everyday," Justice Khehar shot back at the government.

Justice A.K. Goel joined in from the bench, asking the Centre "what is the compulsion now to change your stand… are you saying we were wrong in 1993?"

"No, but there are doubts and clarifications… the original Constitution had no primacy or Collegium," Mr. Rohatgi defended the Centre's stand.

"What doubts? Where are these doubts?" Justice Goel asked.

Justice Khehar recounted how the government accepted the CJI's primacy "first thing" after the 1993 judgment and post the Presidential Reference.

"But 20 years have gone by… such a stand by the court now is very dangerous, " Mr. Rohatgi said.

"You are the one which is dangerous if you keep changing your positions," Justice Khehar retorted.

With this, the court made its intentions clear against referring the petitions challenging the NJAC law to a larger bench.

Justice Khehar said his bench is sitting to decide the validity of the NJAC law "and here it is not enough to prove that 1993 judgment is wrong".

He said here the government would only succeed if it proves that its new NJAC law is "equally independent" as the Collegium system.Hindu

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