Temperatures rose in Court No. 4 of the Supreme Court as the highest judiciary sparred with the Centre when the latter claimed that the Supreme Court had tweaked the “original” Constitution 22 years ago to give the Chief Justice of India and his collegium primacy to appoint judges.

The five-judge Bench led by Justice J.S. Khehar, deciding the validity of the National Judicial Appointments Commission law, hotly contested Attorney-General Mukul Rohatgi’s opening argument that there was not a word about judicial primacy in the original Constitution drafted by the founding fathers.

Mr. Rohatgi submitted that independence of the judiciary did not mean that the CJI and his collegium had the final say or primacy in appointment and transfer of judges.

“Independence of judiciary was not an insulated concept,” Mr. Rohatgi submitted.

He blamed the 1993 judgment in the Second Judges Case by a nine-judge Bench for ushering in the collegium system of judicial appointments.

In this judgment, the court had evolved the principle of judicial independence to mean that no other branch of the State — including the legislature and the executive — would have any say in the appointment of judges. The court then created the collegium system. There is no mention of the collegium either in the original Constitution or in successive amendments, the Centre contended.

Mr. Rohatgi said the 1993 judgment needs to be first “re-considered” by a larger Bench on the question of interpretation of Articles 124 and 217 of the Constitution, which deal with judicial appointments.

The Bench, however, was in no mood to agree; instead, it turned combative. “When the 1993 judgment came and later in the Presidential Reference, you, the government, was the first one to agree about judicial primacy. You accepted this as your final position. You can’t change your position everyday,” Justice Khehar shot back at the government.

Justice A.K. Goel joined in, asking the Centre “what is the compulsion now to change your stand? Are you saying we were wrong in 1993?”

“No, but there are doubts and clarifications. The original Constitution had no primacy for collegium,” Mr. Rohatgi said defending the Centre’s stand.

“What doubts? Where are these doubts?” Justice Goel asked.

With this, the court made its intentions clear against referring the petitions challenging the NJAC law to a larger bench.

‘To ensure impartiality, govt. should not select judges’

The Bench contested Mr. Rohatgi’s opening argument that there was not a word about judicial primacy in the original Constitution drafted by the founding Fathers.

Further in 1998, the Supreme Court, on a reference by President K.R. Narayanan, reinforced the collegium system by forming nine guidelines of procedure and by also increasing the strength of the collegium, Mr. Rohatgi said.

Justice Khehar recounted that the government had accepted the CJI’s primacy “first thing” after the 1993 judgment in the Second Judges case and post the Presidential Reference.

“But 20 years have gone by and such a stand by the court now is very dangerous,” Mr. Rohatgi said.

“You are dangerous if you keep changing your positions,” Justice Khehar retorted.

Justice Khehar said his Bench was sitting to decide the validity of the NJAC law “and here it is not enough to prove that the 1993 judgment about the CJI’s primacy is wrong.”

He said the government would only succeed if it proved that its new NJAC law is “equally independent”.

“The citizen of the country is not worried about the salary of a judge or the house in which he lives or who the CJI is. He is only worried about whether a judge is impartial. For this, the government, the largest stakeholder, should not participate in selection of judges,” Justice Khehar observed.