SC restrains high courts from entertaining pleas against Acts on judicial appointment

The Supreme Court today restrained all high courts from entertaining pleas challenging validity of the Constitutional Amendment Act and the National Judicial Appointments Commission Act dealing with the appointment of judges, even as the apex court indicated that it might quash the controversial legislation.

The order came after the centre told the Supreme Court that the petitions against the Constitutional Amendment Act and NJAC Act are premature and are yet to be notified.

''We will decide later as to whether these pleas are maintainable or not and whether they should be referred to a larger bench,'' the court said.

The SC will hear the petition on 17 March.

Even as a bunch of petitions questioned the constitutional validity of NJAC Act alleging that it attempted to jeopardise the independence of judiciary, which is a basic structure of the Constitution that Parliament can't amend, the government on Tuesday told the Supreme Court that there was unprecedented unanimity in Parliament to amend the Constitution to replace the opaque collegium system, by which judges appoint judges, with a transparent multi-member National Judicial Appointments Commission (NJAC).

The petitioners apprehended that the government was trying to take away the primacy of judiciary in the appointment of judges, thus sending a signal that it wanted to choose judges with whom it was comfortable.

Brushing aside apprehensions about NJAC being a threat to 'independence of judiciary', attorney general Mukul Rohatgi told a bench of Justices A R Dave, J Chelameswar and Madan B Lokur that it was Parliament's unanimous view to replace the collegium system, which has been subject to much criticism.

"Lok Sabha passed the bill by 367 to zero vote and Rajya Sabha by 179 votes to none against it. Apart from this, now 20 states have ratified it. There is an overwhelming mandate from the people for a change in the system of judges appointing judges, which was brought into force by the Supreme Court through a judgment. The scheme prepared by the apex court through the judgments in the 1990s did not conform to the provisions of the Constitution," the AG said.

"Moreover, one cannot say with certainty that the constitutional scheme for appointment of judges, which was in practice from 1950 till the late 1990s, produced any worse judges than those appointed through the collegium system. The system is evolving. Let the new system be given a chance. The moment the law is notified, it will bring the collegium system to an end," the AG said, arguing against stay of the legislation.

The petitioners, through senior advocates Fali Nariman and Anil Divan, argued that the law was enacted on 14 August whereas the constitutional amendment received the President's assent on 31 December, which meant on the day the legislation was enacted, it was contrary to the constitutional provision, and hence unconstitutional.