Supreme Court takes note of ‘judges appointing judges’

The Supreme Court on Monday witnessed sharp exchanges when it took exception to Attorney General Mukul Rohatgi using the phrase "judges appointing judges" to attack the collegium system and observing that BR Ambedkar would have turned in his grave at the way the power was taken away from the executive.

The five-member constitution bench headed by Justice J S Khehar also hit back saying the constitution framer would have turned in his grave many times "with all that is happening".

The interesting exchanges took place as arguments resumed in the case challenging the National Judicial Appointment Commission (NJAC) Act which seeks to replace the <g data-gr-id="41">two-decades</g>- old collegium system.

"What is this? You (Centre) use it just because this is a catchy phrase. It cannot be like that. The President appoints the judges," said the bench.

The bench's observation came when Rohatgi said "the Constitution framers did not think and envisage that the judges will appoint judges. This (collegium) system was foreign to the Constitution".

The bench also questioned Rohatgi for referring to the debates in the Constituent Assembly on Articles relating to <g data-gr-id="58">appointment</g> in higher judiciary when Art 124 (establishment and constitution of Supreme Court) is already amended.

The Attorney General said that it was being referred to show the intent of the framers that the decision to appoint judges would be an "executive" one and it was "turned upside down" in 1993.

"Ambedkar would have turned in his grave considering what happened to Article 124 in 1993," Rohatgi said.

"With all that is happening, Ambedkar would have, by now, turned many times," hit back the bench, which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.

Rohatgi said that it was the will of the people to have a "transparent, accountable and criteria-based" appointment of judges through the NJAC.

He described the junked collegium system akin to "you scratch my back, I will scratch yours". 

During the hearing, the bench referred to Articles 74 (council of ministers to aid and advise President) and 124 (establishment and constitution of Supreme Court) and asked the Centre to distinguish the role of the President under both the provisions.

“Under Article 74, the President ‘shall’ exercise his powers on the aid and advice of the council of ministers,” the bench said, adding that the <g data-gr-id="54">primacy</g> lie with the executive.

The bench then referred to Article 124 and asked Rohatgi to clarify as to whether does the same principle applies in the appointment of judges and where the judiciary has the primacy.

“The appointment of judges is an executive function and the President acts on the aid and advice of the council of ministers. The President does not act as per his discretion,” Rohatgi said, adding, “it is not as if, the first citizen <g data-gr-id="55"><g data-gr-id="61">of of</g></g> the country is banned from consulting, on his own, any judges. The role of the President, really speaking, is ceremonial.” 

When the AG tried refer to a judgement on the issue, the bench said, “Do not answer off-the-cuff. Take your time.”