Government threatens Supreme Court with new law if NJAC is struck down

NEW DELHI: The government on Monday refused to countenance a return to the collegium system of appointing judges and said it will introduce fresh legislation should the Supreme Court strike down the laws that have enabled the establishment of the National Judicial Appointments Commission (NJAC).

Such a course could set the stage for a “constitutional stalemate”, warned the Supreme Court bench hearing petitions against the twin NJAC laws. The tone of the arguments in the case, already quite heated, seemed to get sharper as solicitor-general Ranjit Kumar elaborated on the government’s stance. This is the first time that the government has taken the position that there will be no return to the collegium system regardless of what happens in the case.

Kumar’s argument demolished the assumption that the collegium system would be restored if the laws were found to be unconstitutional to avoid a vacuum. The top court had even hinted that this would be the case previously, albeit with safeguards to ensure transparency and accountability to address concerns regarding the collegium system.

But the government, which has a large majority in the lower house, made clear that it would rather have a constitutional vacuum than return to the earlier system, which it said gives the judiciary absolute “exclusivity… not only primacy” in appointments. “There can be no revival of something which has been legally abrogated,” Kumar said. He cited several judgements to back his claim that the court cannot revive a system that had been rendered defunct. Justice Kurian Joseph said this would create a constitutional vacuum of sorts. “There will be a hiatus but Parliament will enact a law,” Kumar said.