New Delhi: The Supreme Court on Tuesday asked the centre to provide it a list of appointments of judges, which were not proper, made by the collegium during the last two decades.
The move came a day after the apex court took exception to Attorney General Mukul Rohatgi using the phrase "judges appointing judges" to attack the collegium system and observing that BR Ambedkar would have turned in his grave at the way the power was taken away from the executive.
The five-member constitution bench headed by Justice JS Khehar also hit back, saying the constitution framer would have turned in his grave many times "with all that is happening".
The interesting exchanges took place as arguments resumed in the case challenging the National Judicial Appointment 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," the apex court bench said.
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 appointment in higher judiciary when Art 124 (establishment and constitution of Supreme Court) is already amended.
The Attorney General said that it was being referred to show the intent of the framers that the decision to appoint judges would be an "executive" one and it 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".
During the hearing, the bench referred to Articles 74 (council of ministers to aid and advise President) and 124 (establishment and constitution of Supreme Court) and asked the Centre to distinguish the role of the President under both the provisions.
"Under Article 74, the President 'shall' exercise his powers on the aid and advice of the council of ministers," the bench said, adding that the primacy lie with the executive.
The bench then referred to Article 124 and asked Rohatgi to clarify as to whether does the same principle applies in the appointment of judges and where the judiciary has the primacy.
"The appointment of judges is an executive function and the President acts on the aid and advice of the council of ministers. The President does not act as per his discretion," Rohatgi said, adding, "it is not as if, the first citizen of of the country is banned from consulting, on his own, any judges. The role of the President, really speaking, is ceremonial."
When the AG tried refer to a judgement on the issue, the bench said, "Do not answer off-the-cuff. Take your time."
Rohatgi said the appointment of judges was purely an executive function till 1993 and the provisions said that there would be "mandatory" consultation with the Chief Justice of India (CJI).
"In any event, the Second Judges Case/Third Judges Case, evolved a new system of a collegium-based appointment in response to particular exigencies at that time, a system which did not exist in the Constitution," he said.
He then referred to sequence of events prior to the introduction of collegium system.
"The sequitur of this analysis in the instant case is that there were 'compelling forces' in terms of executive over-reach in appointments, starting with the supersession of judges in 1973, mass transfer of judges in the Emergency in 1976, a second supersession in 1977 and continuing itinerant interference over the 1980s, which provided the context for the creation of the judicial collegium and vesting primacy in the judiciary in the matter of appointments in the Second Judges' case.
"A system devised to address particular concerns cannot assume permanence for all times to come. This is especially because the collegium having operated for over two decades has meant that different issues and concerns have arisen, which Parliament has now in its wisdom decided to address," he said.
The Attorney General also referred to the speech of the Law Minister in Parliament and said that several attempts have been made to replace the collegium system in the past.
"There was the Constitution (Sixty Seventh Amendment) Bill, 1990. The Bill lapsed. Then there was the Constitution (Eighty Second Amendment) Bill, 1997. It could not be passed. Then there was the National Judicial Commission, 1998.
"Thereafter, there was the Constitution (Ninety Ninth Amendment) Bill, 2003 ...Then there was the National Commission to Review the Working of the Constitution, 2003. Then there was the Second Administrative Reform Commission, 2007. And many other efforts were made. Then there was the Law Commission Report," Rohatgi, quoting the speech of the Law Minister, said.
He further said that though there was no "primacy" given to judiciary in the appointment of judges, but the NJAC provides that two, out of three judges, can stop the appointment of judges.
"But, in NJAC, there is no right to insist on a particular appointment and the right to insist on a particular appointment is not part of basic structure of the Constitution," he said.
Primacy of judiciary in judges' appointment is not a basic feature of Constitution and is also not connected with judicial independence, he said.
"Parliament's power to amend the Constitution is plenary, subject to only one restriction, i.e. it cannot abrogate the basic structure of the Constitution, which has to be culled out from specific articles of the Constitution as originally enacted.
"Parliament is best equipped to assess the needs of the people and the changing times and the wisdom of Parliament is not subject to judicial review," he said.
He also referred to the contents of speeches made by various members, cutting across the party lines, in the favour of the NJAC in both houses of the Parliament to there was strong will of the people.
"Why only 20 states have ratified it," the bench said.
"This more than the required," Rohatgi said, adding that there has been an over-whelming support in Parliament in favour of the law.
The AG termed as "alarmist" the apprehensions raised on the future functioning of the NJAC saying that the recent appointment of the CVC shows that even political opponents can behave in a "mature" manner for ensuring rule of law.
He then referred to criticisms of the collegium system made by eminent jurists and former judges of the apex court.
Late Justice V R Krishna Iyer said, "Another great deficiency is that a collegium that is untrained in the task, selects judges in secret and bizarre fashion. There could be room for nepotism, communalism and favouritism in the absence of guidelines.
"The selection process excludes the Executive. Nowhere in the world do we have judges alone selecting other judges. The collegium is a disaster: the P D Dinakaran episode is an example?"
"Do you want to say that two eminent persons would be trained?," the bench said.
Earlier, the court had rejected the Centre's plea that the petitions against the NJAC be referred to either nine or 11 judges bench.
The bench, however, had clarified that the issue relating to challenge to the National Judicial Appointment Commission Act, 2014 can be referred to a larger bench at the later stage, if required.
The court is hearing a batch of petitions including the plea filed by the Supreme Court Advocates-on-Record Association (SCAORA) against the NJAC.
With PTI inputs
