The Supreme Court on Monday said that the National Judicial Appointments Commission (NJAC) cannot be allowed to function as a “hit-and-trial” policy, and that the new system would continue only if its constitutional validity was upheld.
“It cannot be a hit-and-trial... You can't appoint 200 judges in high courts and later reverse the appointments... The independence of judiciary will be lost. It cannot be the argument that lets it work,” a five-judge constitution bench told the Centre.
The comments came after solicitor-general Ranjit Kumar said there was nothing to show that the NJAC Act curtailed the independence of the judiciary.
He argued that the new system should be given a chance to operate and that the defunct collegium system cannot be revived even if the NJAC Act was declared unconstitutional.
“Do you (SG) mean to say that if we decide to strike it down then it has to be brought back by another constitutional amendment by the Parliament only?... Even after we strike it down on the ground that it violates the doctrine of basic structure? Why can’t the earlier position be revived?” the bench asked.
“You (Centre) cannot take away the court’s power (judicial review) under Article 32 and 226 of the Constitution. Can that be declared void? Who will declare it void?” asked the bench, which had on Friday said the collegium would be revived on its own if the 99th Constitutional amendment and the NJAC Act were declared unconstitutional.
Kumar said that courts couldn’t legislate and Parliament alone could fill the “void” if the NJAC was struck down. “Why (do) you presume that we’ll quash the NJAC?” the court commented.
Kumar argued that constitutional provisions cannot be invalidated on the ground of possibility of abuse and functionaries like Prime Minister, the CJI and the Leader of Opposition were “presumed to exercise their power in accordance with law”.