A day after Chief Justice of India H L Dattu refused to attend meeting to select two members to the NJAC panel, various Bar bodies today told the Supreme Court that the validity of new law on appointment of judges cannot be sustained as it violates "basic structure" of the Constitution.
"Basic Structure is violated because the body (National Judicial Appointments Commission-NJAC) sought to be created, does not have the salient features of the body (collegium) substituted," senior advocate Fali S Nariman, appearing for Supreme Court Advocates on Record Association (SCAORA), told a five-judge Constitution bench headed by Justice J S Khehar.
SCAORA, Bar Association of India (BAI) and few others are challenging validity of the National Judicial Appointments Commission Act, 2014 and enabling Constitution (99th amendment) Act 2014.
The noted jurist, citing judgements, told the bench, also comprising Justices J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, that in the NJAC, no "weightage or primacy" has been given to the views of the CJI in selection of judges and moreover, "the question here is as to whether independence of judiciary is part of the basic structure".
He then referred to the constitution of the six-member panel, comprising three senior-most SC judges including the CJI, the Union Law Minister and two eminent citizens and said, "who will decide" if the panel gets divided vertically on the question of appointment of a judge.
The primacy of views of judiciary is not there, he said."A Chief Justice of a High Court is not a participant of the NJAC but can only send his recommendation to the NJAC", Nariman said, adding that it is a major flaw of the new law.
"Preponderance" of views of three senior most judges of the apex court, as recommended by the Venkatachaliah panel, has not been not provided for by the NJAC Act, he said.
Nariman was supported by senior advocate Anil Divan, appearing for BAI, who said, "The manner, it (NJAC) has been constituted, the Act has altered the basic structure of the Constitution."
"The direct and inevitable" effect of these two laws on independence of judiciary has to be looked into, he said.
"We will examine the enactments as they stand today," the bench said.
Citing case laws, Divan said, "Article 368 does not enable Parliament to alter the basic structure of the Constitution".
The lawyer, citing the case of supersession of judges, said the convention (primacy of judiciary in appointment of judges) can be broken under the new law.
"If the Constitution can be altered then the convention can also be altered," the bench said.
During the day, Attorney General Mukul Rohatgi, on the issue of seniority, said judicial appointments have been "bogged down" by this seniority aspect.
If seniority is no criteria, then "someone down the line" can oblige the executive for a judicial berth, the bench said.
Nariman and Divan today concluded their arguments and senior advocate Arvind P Datar, who represents the Service Bar Association of Madras High Court, began his arguments which remained inconclusive. He would resume arguments tomorrow.
Earlier, Nariman had said that the NJAC Act could not have been passed by Lok Sabha and Rajya Sabha without the prior passage of enabling constitutional amendment bill.
In his letter to Prime Minister Narendra Modi, CJI said he would not attend the meeting of the selection committee of the NJAC till the validity of the law is upheld, sparking a a fresh controversy. The AG had termed CJI's refusal as a "constitutional stalemate".
The bench then had sought views of eminent lawyers and decided that it will continue with the hearing on the merits of the case and, if needed, will pass an interim order.
"A consensus has emerged that we will continue with the merits of the case and when it is necessary we will pass an interim order," it had said.
On April 23, the court had said that NJAC will only deal with appointment of existing additional judges of High Courts, whose tenures are ending during pendency of the controversy, after it was assured by the AG that commission will not appoint judges to the higher judiciary and will move the court in such an eventuality.
The court had also cleared decks for hearing of batch of pleas against the NJAC by rejecting the submission seeking recusal of presiding judge Justice Khehar on the ground of conflict of interest and bias.
It had also issued notices to the Centre, all states and union territories asking them to be ready with the matter which "purely involves questions of law".
A consensus was evolved that the petition filed by SCAORA, in which Nariman is appearing, will be the lead case among the batch of petitions challenging the validity of Constitution (99th amendment) Act 2014 and the NJAC Act, 2014.
The Attorney General will be the lead counsel to defend the law which has got support from the Supreme Court Bar Association and states like Madhya Pradesh and Haryana for which senior counsel K K Venugopal and Salve appeared.