New Delhi: The Supreme Court on Wednesday told the government that it did not press the "checks and balances" available to it to redflag names for the appointment of judges recommended by the apex court collegium about whom it had reservations.
"You did not put in your checks and balances. Where you wanted, you did and in others you did not," the constitution bench of Justice J.S. Khehar, Justice J. Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel told Attorney General Mukul Rohatgi as he assailed the collegium system contending that it took away the primacy of the executive in the appointment of judges.
Telling the court that "I am willing to take the blame" that the government did not press into action the "checks and balances" available to it, Attorney General Rohatgi said both the petitioners -- the Supreme Court Advocate on Records Association (SCAORA) which has challenged the NJAC, and the government were nearly on the same page about the shortcomings in the functioning of the collegium system, which besides other weakness was "opaque".
"There can be criticism of any system (for the appointment of judges) but the question is that of the primacy of the judiciary," Justice Goel told Rohatgi as he referred to some well-known jurists who had expressed their reservation over the working of the collegium system.
Rohatgi said the birth of the collegium system should be seen in the context of events wherein the executive was trying to tame the judiciary.
If there were apprehensions that the executive would push its favoured people in the judiciary, the same thing happened in the collegium also, he told the bench.
The Attorney General told the court that in 1993, the judges did not look at the Constitution in its entirety along with the Constituent Assembly debates.
He said there was nothing in the Constitution or the Constituent Assembly debates that could have led to the conclusion for insulating judicial appointment from the executive gaze by creating the collegium of judges headed by the CJI.
He told the court that there were in-built checks and balances in every provision of the Constitution as no organ had unfettered or absolute powers.
Once again impressing upon the court that the entire issue, as it involved the question of primacy of judiciary in judicial appointments, be referred to the larger 11-judge bench, Rohatgi said the primacy of judiciary in judicial appointments was given by the nine-judge bench in the 1993 second judges case and thus a five-judge bench cannot go into it.
Finding faults with the 1993 second judges case verdict, Rohatgi said it was not a case where article 124 of the Constitution was interpreted but was an act of legislation by which the primacy of the executive in the appointment of judges was replaced by the judiciary.
"It is not an interpretation but a legislation. What collegium says is the ultimate power and the remaining judges (outside the collegium) are redundant. Then what is the meaning of consultation with judges in the article 124 of the Constitution," the Attorney General said.
The nine-judge constitution bench in 1993 interpreted article 124 and created a collegium of three judges including the CJI to initiate and select judges to be appointed to higher judiciary.
However, in an opinion on a presidential reference in 1998, the three-judge collegium was expanded to a five-judge collegium.
Describing the apex court's 1998 decision expanding the collegium to five seniormost judges as an act of legislation, Rohatgi wondered how could the court do so in an opinion on a reference.
"Three becomes five in the collegium is nothing but a further legislation," he told the court.
The hearing will continue on Thursday.