New Delhi: The Supreme Court today tersely told the Centre that appointment of judges in higher judiciary is a "serious" business and cannot be left either to the "hit-and-trial" method or to the mercy of God.
"This is a serious business. The only problem is that we cannot leave it to God. The appointment of judges is not a hit-and-trial business," a five-judge Constitution bench headed by Justice J S Khehar said during the day-long hearing on the pleas challenging the validity of the National Judicial Appointment Commission (NJAC).
Hit-and-trial is part of Constitutional evolution. NJAC should be given a try. It is better then the previous models," Attorney General Mukul Rohatgi told the bench which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.
"Then do not say that it (NJAC) is hit-and-trial method. Say that it is fool proof," the bench said.
"It is better than the previous systems," Rohatgi said and later, during the hearing, repeated his earlier statement that the junked Collegium system was akin to "you scratch my back, I will scratch yours".
When Rohatgi was arguing that the right to insist for an appointment or right to be appointed a judge cannot be termed as fundamental right, the bench asked how many such instances are there where the collegium has insisted for appointment of a particular judge.
"Very few," Rohatgi replied and narrated an incident where a person was appointed judge despite serious objections raised by the Government and the President as well.
The bench then referred to an incident where Intelligence Bureau first gave an adverse report on a judge and then changed the findings in the second report.
"It is the question of working of the system," it said, adding, "the system is such that an IB report can be changed. What was the reason for seeking the second report".
The bench also asked the Centre to give a list of all "bad appointments of judges" made under the Collegium system during last two decades.
At the outset, Rohatgi dealt with the doctrine of basic structure and the power of Parliament to amend, delete or substitute constitutional schemes and said that Article 124 (establishment and constitution of Supreme Court) is "amendable" with a strict procedure where half-of-the states need to ratify the Constitutional change.
