NJAC Act is still-born: Nariman tells SC

The Supreme Court was told on Thursday that the National Judicial Appointment Commission Act, 2014 was a still-born law.

Pointing out that the Constitution (Ninety-ninth Amendment) Act, 2014 making a constitutional provisions for NJAC became a reality on January 1, 2015 only after President Pranab Mukherjee gave assent on December 31, 2014, senior counsel Fali Nariman told the apex court bench of Justice Anil R. Dave, Justice J. Chelameswar and Justice Madan B. Lokur that the government can't make preparation for implementation of a law (NJAC Act, 2014) which can be passed only now.

Appearing for the Supreme Court Advocate on Record Association which had challenged both the constitution amendment and the NJAC Act, Nariman told the court that parliament can't pass a law which is contrary to the provisions of the constitution and all exercises for operationalising NJAC will fall.

Telling the court that passing a law without supporting constitutional provisions goes to the root of the matter, Nariman said that it does not require a hearing by a five-judges bench to decide the matter.

Agreeing that parliament is supreme, Nariman said: "Of course, parliament is supreme. But it was not made aware in the statement of object and reasons of the NJAC Act and constitutional amendment as to why government went back on former chief justice M.N. Venkatachaliah Commission's recommendation for a five-member National Judicial Commission with three judicial members.

"You may change the mode of appointment of judges if you uphold the independence of judiciary and preponderance of judicial members," Nariman said adding that the government can't wish away the judgment of nine judges.

Earlier, when senior counsel Dushyant Dave appearing for the Supreme Court Bar Association sought to stump Nariman by referring to his criticism of collegium system, Nariman retorted saying that "criticism does not entitle the Executive to assume power" for appointing judges.

Dave - also the president of SCBA - supported the NJAC saying that the court could not stay a constitutional amendment and it was only in rarest of rare situation that the operation of a statute was put on hold.

Senior counsel T.R. Andhyarijuna submitted: "We are plunging into an uncharted field. Both the constitution amendment and NJAC Act, 2014 are a law. It has to be brought into operation. Until it is brought into operation, only then it can be examined."

Attorney General Mukul Rohatgi in his intervention once again told the court that challenge to both - the constitutional amendment and NJAC Act - was pre-mature and academic as it has yet to be operationalised.

He said that even after NJAC Act is operationalised it can't be challenged next day as a cause for challenging its validity has to surface before it is challenged.

The court was told this in the course of the hearing a batch of petitions challenging validity of the Constitution (Ninety-ninth Amendment) Act, 2014, that provides for setting up the National Judicial Appointment Commission (NJAC) and for enabling statute the National Judicial Appointment Commission Act, 2014.

The hearing will continue March 24.