11-judge bench must hear challenge to NJAC, AG tells SC

New Delhi, April 28: The challenge to the constitutiol validity of the act setting up the tiol Judicial Appointment Commission and the supporting constitutiol amendment must be heard by a larger bench of nine or 11 judges, Attorney General Mukul Rohatgi told the Supreme Court on Tuesday.

Addressing the constitution bench comprising Justice J.S. Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice A.K. Goel in the course of the hearing, Rohatgi said that if the challenge to NJAC has to be examined in context of “primacy of judiciary” in the appointment of judges to higher judiciary, then it has to go to an 11-judge bench.

He noted the primacy of judiciary in the judicial appointment - that gave birth to collegium system - was decided by a nine-judge bench in 1993 and if this question has to be gone into, then it can’t be by a five-judge bench but by larger bench of 11 judges. The view that was placed before the constitution bench by senior counsel and former additiol solicitor general Bishwajit Bhattacharyya on Monday, found support from senior counsel Fali riman and Rohatgi on Tuesday.

Meanwhile, Rohatgi, assailing the submission by senior counsel Anil Divan on the dilution of primacy of the judiciary in judicial appointment, wondered how in the interpretation of the constitution’s article 124 (establishment and constitution of Supreme Court) dealing with judicial appointments, the concept of primacy of judiciary was plucked out of air.

He contended that for 40 years, the origil article 124, which involved only consultation with the chief justice worked very well and “I dare say it produced some of the best judges”.

As Divan told the court that in the selection of two imminent persons to be on the NJAC, the political voice was pronounced, the court asked where was political voice as there was the prime minister and the leader of opposition besides the chief justice of India. (IANS)