SC takes strong note of phrase '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 B R Ambedkar would have turned in his grave at the way the power was taken from the executive.

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

Interesting exchanges took place as arguments resumed in the case, challenging the National Judicial Appointments Commission (NJAC) Act which seeks to replace the two-decades-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 appointments in the higher judiciary when Article 124 (establishment and constitution of Supreme Court) is already amended.

The attorney general said it was being referred to show the intent of the framers that the decision to appoint judges would be an “executive” one and this 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".