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New Delhi, April 27: The government-judiciary tussle over primacy in judges' appointments today spawned a "constitutional stalemate", the Chief Justice refusing to immediately join the newly enacted government-mediated mechanism and the Centre stonewalling a Supreme Court prod to confirm certain judicial appointments.
The deadlock arose before a five-judge constitution bench that is hearing petitions challenging the legality of the National Judicial Appointments Commission (NJAC), which gives the government a bigger say in appointments and transfers of apex court and high court judges.
Attorney-general Mukul Rohatgi said a "constitutional stalemate" had arisen from Chief Justice of India H.L. Dattu's decision not to be part of a three-member panel to pick "two eminent persons" for the NJAC till the five-judge bench had decided the case.
The panel's other two members are the Prime Minister and the leader of the largest Opposition party.
On the other hand, Rohatgi stayed non-committal on the bench's nudge to confirm the appointments of an unspecified but substantial number of "additional" high court judges, whose services would otherwise lapse on May 21.
These judges had been appointed temporarily two years ago under the erstwhile collegium (a judges-only panel) system.
Strong words were exchanged. Madhya Pradesh counsel K.K. Venugopal - all the states have been issued with notices - said the constitutional amendment allowing the NJAC was in force and cautioned that Justice Dattu could not be "seen as violating" the Constitution.
Rohatgi urged the court to direct Justice Dattu to sit on the three-member panel first before the government decided on the additional high court judges. The bench refused and threatened to force the Centre's hand on the additional judges by passing an order.
Eventually, senior counsel Harish Salve, appearing for the Haryana government, suggested a way out.
He said the court should first hear the anti-NJAC petitions for 7 to 10 days and then pass an order on the additional judges after taking a prima facie view of the matter.
After a 20-minute discussion, the five-judge bench of Justices J.S. Khehar, J. Chelameshwar, Madan B. Lokur, Kurien Joseph and A.K. Goel agreed and began hearing arguments on the NJAC's constitutionality.
A host of bar associations and individual advocates have challenged the NJAC, while several BJP-ruled states have joined the Centre to defend the commission, to be made up by the three senior-most judges, Union law minister and two eminent persons.
Any two dissenting members will enjoy veto power, giving the government significant purchase on decisions. Earlier, the government could return an initial recommendation by the collegium for reconsideration but had to endorse it if it was sent back.
The first 80 minutes of today's proceedings witnessed sharp exchanges.
Rohatgi said Justice Dattu had written to Prime Minister Narendra Modi declining an invite to join the three-member selection panel.
The Centre has told the court the NJAC would not make any appointments or transfers before the case was decided, but the government seems to be viewing the formation of the commission as a prestige issue.
Rohatgi handed a copy of the "confidential letter" to the bench. His office refused to share the contents with the media. Justice Dattu's office told The Telegraph the letter, written on Saturday, said "it is not advisable to be part of such meeting" as long as the matter was in court.
"Therefore the position is of a stalemate," Rohatgi said. "A constitutional stalemate... created by one of the members of the three-member selection committee."
In this context, he said, it may be difficult for the government to decide about confirming the services of the additional judges.
The bench suggested the matter be left to the CJI and the two other senior-most apex court judges as they would have been part of both the collegium and NJAC. Rohatgi demurred.
"Let nothing be done except confirming the services of additional judges," the bench said. "If we have to pass an order, we will have to pass it - that cannot be stopped."
"According to me, the stalemate is unconstitutional," Rohatgi said. "Your Lordships can pass an order asking the CJI to sit on the committee."
Justice Khehar said: "We can't ask a person to sit when he is not willing to sit."
Rohatgi said: "Because of the refusal of one of the judges, the will of the Constitution cannot be stultified."
The bench said: "If the CJI does not want to sit, what can be done?"
Venugopal said: "The CJI has taken an oath that he will abide and uphold the Constitution. He cannot be seen as violating it. It will set a very bad example. It will go into the textbooks of the country. Your Lordship must direct the CJI to sit on the committee. Otherwise Your Lordships will be failing in their duties."
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