" Another petitioner, senior advocate Bishwajit Bhattarcharyya said in 1979, a seven-judge apex court bench, on a presidential reference on setting up a special court to try excesses during the national emergency (1975-1977), had opined that even at the stage of the pendency of a bill in parliament, the courts are fully competent to rule on its constitutionality. "
New Delhi, Aug 25 - The Supreme Court Monday dismissed, as premature, a batch of petitions challenging the constitutional validity of the judicial appointments bill that was passed by parliament to replace the existing collegium system for appointment of judges to the higher judiciary.

While terming the plea as premature, the bench of Justice A.R. Dave, Justice J. Chelameswar and Justice A.K. Sikri, however, said the parties were open to move the court on the same grounds at an appropriate stage.

Appearing for the Supreme Court Advocate on Record Association, senior counsel Fali Nariman contended that the government could not have brought the National Judicial Appointments Commission Bill without first amending the constitution paving the way for it which is still in the process and not completed.

Attorney General Mukul Rohatgi, seeking the dismissal of the petitions, said they were premature, devoid of substance and academic in nature and the court could not interfere with the NJAC bill and the constitution amendment as it was still in the sphere of legislature.

It is yet to be ratified by the one half of the state assemblies, which may or may not do it, and then receive the president's assent.

Rohatgi said that if one half of the state assemblies don't ratify the constitutional amendment, which is at the heart of the NJAC Bill, then it becomes infructuous.

Presenting his view, PIL petitioner M.L.Sharma said that he was neither challenging the NJAC Bill or the constitutional amendment bill but the procedure that was followed by the parliament. He wondered whether parliament could enact the NJAC Bill when the foundation for its enactment was not there in the constitution.

He contended that normally, even if parliament proceedings are not regular, they can't be challenged but they can't escape judicial scrutiny if they are contrary to constitutional provisions.

In a hearing that lasted for one and half hours, Nariman said that bringing a bill and passing it to replace the collegium system without there being a constitutional provision backing it, makes it invalid. I am saying how was it introduced and passed in the house.

At this, Justice Sikri said: This is an argument that needs to be considered. But at what stage, now or later, as Nariman said that it was impossible to introduce and pass the NJAC Bill without amending the constitution's articles 124(2) and 217(1).

Nariman said the NJAC Bill in its present form assailed the independence of the judiciary which is a basic structure of the constitution.

Tracing the history of the National Judicial Appointments Commission, the jurist said that it was suggested by former chief justice M.N.Venkatachaliah under which a five member NJAC would have CJI and other two senior most judges of the apex court. This composition ensured the primacy of the CJI and two other judges.

I don't say NJAC is not good. Of course it is good, Nariman said, seeking to know why the bill that was introduced in 2003 by the then Atal Bihari Vajpayee-headed NDA government had been reduced to naught without anything happening in the intervening period except some articles appearing in media.

He questioned why the five-member NJAC was made six-member and objected to the provision where even two non-judicial members can veto the recommendations of the CJI and two other senior most judges.

Nariman said that the question before the court is at which stage a bill, which on the face of it erodes constitutionality, could be challenged - at the stage of introduction or after being notified and becoming a law. The question is the stage of challenge and the nature of challenge.

Another petitioner, senior advocate Bishwajit Bhattarcharyya said in 1979, a seven-judge apex court bench, on a presidential reference on setting up a special court to try excesses during the national emergency (1975-1977), had opined that even at the stage of the pendency of a bill in parliament, the courts are fully competent to rule on its constitutionality.

Attorney General Rohatgi opposed the plea, saying that such a situation would lead to chaos and a bill would be challenged even before it is introduced, thus blurring the separation of power.


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