A five-judge Constitution bench headed by Justice J.S. Khehar said the collegium system would have to be reinstated automatically if the 99th Constitutional Amendment — which ended judicial monopoly over appointments to higher judiciary — and the NJAC Act fail to pass the test of law.
Thus the Indian judiciary is on a collision course with the government on the mode of recruitment of judges to the high courts and Supreme Court.
The bench slammed the attorney general Mukul Rohatgi for alleging that the collegium had only appointed “inefficient judges”. The court pointed out the government helped these “inefficient judges” by posting them to important and plum assignments after their retirement.
Recalling past instances, the bench said the constitutional provisions which were sought to be changed through the 39th and 42nd amendments were back once these amendments were struck down.
“Striking down an amendment would mean that it never existed and old system is revived,” the bench said and rejected the contention of the attorney general who said on May 12 that the collegium system which the judiciary itself appointed judges to the SC and high courts cannot be revived even if the NJAC was declared unconstitutional.
“Even if NJAC is quashed what is dead cannot be revived. You cannot go back to the old system. There is no question of automatic revival of the old system and Parliament will sit again to re-legislate,” Rohatgi had said.
He had said: “The original article 124 has now disappeared from the Constitution. It is dead, buried and gone forever. It cannot be resurrected. It won’t come to life even after this bench quashed the amendment and holds that NJAC is unconstitutional.”
The examples of 39th and 42nd amendments are significant as the twin changes were made by Indira Gandhi government during emergency to restrict the scope of judicial review.
Defenders of the collegium system have argued that the mechanism where judges alone get to decide who can be on the benches of SC and HCs is vital for protecting judicial independence, and that the abolition of collegium will let the executive and legislative encroach on judiciary’s turf.