New Delhi: The collegium system of appointing judges cannot be revived even if the Supreme Court quashes the National Judicial Appointment Commission (NJAC) Act, the Centre submitted before the apex court on Monday.
The Centre made this submission while responding to the observation by the court last Friday that the collegium system of appointing judges would be revived on its own if the Supreme Court decides to strike down the 99th Constitutional amendment and the NJAC Act.
"It is quite clear that if a substituted provision were to be struck down, the question of revival of the old provision which had been substituted by the struck down provision does not arise as the provision which had been substituted stood abrogated and ceased to exist from the statute book," Solicitor General (SG) Ranjit Kumar told a five-judge bench headed by Justice JS Khehar, hearing please against validity of the NJAC Act.
The bench then posed a series of questions to this submission.
"Do you (SG) mean to say that if we decide to strike it down then it has to be brought back by another constitutional amendent by the Parliament only.
"Is it so, even after we strike it down on the ground that it violates the doctrine of basic structure. Why cannot the earlier position be revived?," the bench, also comprising justices J Chelameswar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel, said.
“You (Centre) cannot take away the the court's power (judicial review) under Article 32 and 226 of the Constitution. Can that (decision) be declared void? Who will declare it void," it asked.
To this, the SG, who was advancing arguments to supplement submissions of Attorney General Mukul Rohatgi, said the basis of the judgement could be the violation of the doctrine of basic structure, but the court cannot question the the competence of the parliament to legislate.
"You (Centre) can lack competence if the legislation is against the basic structure. The Article 368 (amending power of Parliament) does not enable the Parliament to legislate" a law which is against the basic structure, the bench responded.
The question as to "whether the amendment made by a Constitutional Amendment once struck down will revive the original/substituted Article is a matter which has already been referred to a 9-Judge Bench in terms of an order reported in 2013..., " the SG said.
"The courts cannot legislate," he said adding Parliament will step in again if the there is a legal "void" after the court decides to strike down a law on the ground of violation of doctrine of basic structure.
The exceptions in this regard is only when the substituted provision was beyond the legislative competence of the legislature substituting it, he said.
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