Collegium system can’t be revived

Solicitor-General Ranjit Kumar told a five-judge Constitution Bench comprising Justices J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel that if the law was struck down Parliament will step in and re-enact the law.

Last week during the course of arguments, when Attorney-General Mukul Rohatgi submitted that the collegium system was dead and buried and could not be revived even if the NJAC law was struck down, the bench had responded that the collegium system would be automatically revived.

Disputing the bench’s observation, Mr Ranjit Kumar said on Monday, “The law cannot be revived on its own. There has to be another constitutional amendment and Parliament will re-enact the law.”

When Justice Goel said, “We will say it (collegium) will continue”, the SG said “you (court) can’t say so as it will amount to judicial legislation.” When Justice Khehar said, “You (government) repeal a clause and substitute a provision and we quash the substituted provision what is the effect, will not the old provision stand restored.”

The SG said “no 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.”

He argued that when substitution “takes place there is an implied repeal of the original provision and doctrine of revival of that provision will not apply.”