NEW DELHI (TIP): While speaking in favour of the proposed National Judicial Appointments Commission (NJAC), the Centre said before the Supreme Court on Wednesday that the collegium system of appointing judges was illegal.

The government said that the collegium system that was put in place in 1993, wherein a panel of judges appointed other judges, was not mandated under the Constitution.

Attorney General Mukul Rohatgi submitted before a three-judge bench, presided over by Justice A R Dave, that the new system as mandated under the NJAC is broad-based, which could be put to the test of Constitutional validity only after it comes into force. “The government is of the view that collegium system is illegal but I would not like to go into it for now. Nowhere is such a system prevalent where judges appointed judges. Can the elected representatives of Parliament not have their say,” he asked. He said that according to the Constitution, only President appoints judges.

Defending the proposed six-member panel to appoint judges, which includes executive members, Rohatgi submitted that several other constitutional posts—like the Comptroller and Auditor General or heads of 25 tribunals that replace high courts—are selected through a system where the executive also plays a role. Rohatgi described a batch of petitions challenging the legality of the NJAC Act as “academic based on surmises and conjectures” since the notification for the proposed law was yet to be passed. Speaking further on the pleas challenging the NJAC, Rohatgi said: “It is not somebody’s fundamental right to be appointed as judge. The petitioners cannot claim any injury caused to them through the proposed law.”

Senior advocate Dushyant Dave, appearing for the Supreme Court Bar Association, contended that the matter could not be heard at present as no act had come in force. He submitted that the case relating to challenge the NJAC Act was also not to be referred to a five-judge bench. Dave claimed that it was a fallacy to claim that the new law would strike the basic structure of the Constitution, that is the independence of judiciary, since its impact and effect were yet to be seen.