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Govt defends new law on appointment of judges in SC

Govt defends new law on appointment of judges in SC
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“I am vigrously contesting the applications for stay. How can the will of Parliament be not notified?” Attorney General Mukul Rohatgi submitted before a three-judge bench headed by Justice A R Dave which also heard arguments by senior advocates Fali Nariman and Anil Divan who alleged that National Judicial Appointments Commission (NJAC) Act, 2014 would take away and knock down the independence of judiciary.

Rohatgi countered their contention by saying that “ultimately sunlight is the best disinfectant and the new system will strengthen the system rather weakening it” and “no system is good for ever and things change”.

Terming the apprehension of other side as “alarmist”, he said “there was no basis to say that executive will gang up”.

Nariman stressed that fait accompli should not be allowed to take place and order should be passed to maintain status quo by referring the matter before a five-judge constitution bench otherwise the entire exercise would become a “dodo”.

His view was shared by Divan who said the legislative exercise undertaken to replace the collegium system not only reduces and overrides judicial voice but it is drowned and it looks like an irreversible situation.

“The appointment of judges for higher judiciary have long been considered as corner stone of independence of judiciary but the new law affects the indpendence of judiciary as it takes away the consultative process and violates the basic structure of the constitution,” Nariman submitted before the bench also comprising Justices J Chelameswar and M B Lokur which will continue the hearing on Wednesday.

Nariman, who assailed the passage of NJAC Act and the Constitution 121st Amendment Bill, said the collegium on Tuesday exists because the constitutional amendment Act has not been brought into force otherwise collegium would have been dead.

He contended that NJAC Bill, which was passed by both the Houses of Parliament on August 14, 2014 was beyond the legislative competence of Parliament and was in violation of Articles 124(2) and 217(1) of the Constitution and as such is invalid and void.

Nariman questioned the enactment of the legislation without bringing amendment in the Constitution.
However, countering the arguments of Nariman and Divan, who were appearing for Supreme Court Advocates-on-Record Association (SCAORA) and an advocate respectively, the Attorney General said since both Houses of Parliament unanimously passed the legislations with voice vote of 367:0 in Lok Sabha and 187:1 in Rajya Sabha, “the Will of the House cannot be ignored”.

“It is our stand that Parliament has absolute power and competence to pass Constitutional amendments and legislation,” he said.

He said it was wrong to suggest that the new process on appointment of judges would take away the consultative process.

The Attorney General traced the history of appointment of judges since 1950 and said there has never been a complaint that judges were not competent and independent and the only aberration was heard during the Emergency which led to the evolution of the collegium system.

“It was never contemplated in the Constitution. The job of judges is to judge the cases not to appoint their brethren,” Rohatgi said adding that the “judicial commission is not a new think which this government has introduced”.
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