NEW DELHI: The NDA government on Tuesday belligerently upped its ante in the Supreme Court, defending the Parliament-enacted National Judicial Appointments Commission (NJAC) to replace the collegium system for appointment of judges and said the Constitution never gave primacy to the CJI or judiciary in this matter.Refuting charges that the executive attempted to encroach upon judiciary’s independence through NJAC, attorney general Mukul Rohatgi said the SC’s nine-judge bench judgment in 1998 changed the constitutional framework through a skewed interpretation to give primacy to the CJI-headed collegium in judges’ appointment.Declining to follow the SC dictated line of presentation of his arguments, Rohatgi said since the government was of the firm opinion that the nine-judge bench judgment was wrong, the court may refer the NJAC case to a larger bench of 11 judges or 13 judges as the challenge was based on ratio of the 1998 judgment.A five-judge constitution bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Goel was surprised by the tone and tenor of the AG’s argument. It asked, “Does it mean the government wants executive primacy in appointment of judges?” It tried to reason with him the futility of seeking referral of the case to an 11-judge or 13-judge bench.The bench also said the government would be setting a dangerous precedent if it came to court after two decades and said it did not accept the 1998 judgment, even though all along it had acted on that basis.The AG said as per the Constitution, the President had to consult the CJI and judges for appointment of judges to the SC and high courts. “CJI was one among the many judges to be consulted. No primacy was assigned to the CJI,” Rohatgi said. He cited constituent assembly debates where the framers of the Constitution had explained why appointment of judges could not be the exclusive domain of the CJI and judiciary.Rohatgi also said Parliament still enacts laws determining the salary of judges. “Would that be construed as legislative interference in judicial independence? Should salary determination be left to the judiciary? Judicial independence meant after the appointment, the legislature and executive should not interfere in the functioning, tenure, salaries and official residences of the judges. But it does not mean that judges alone would appoint judges,” he said.The bench said, “The way you read the provisions, it appears that primacy for judges’ appointment should be with the executive. Do you mean to say Parliament can by law even reduce the salaries of judges and take away independence of judiciary? Do you want to argue that independence of judiciary is not part of the Constitution? Whatever be the power of Parliament, it can never be exercised to subvert the independence of judiciary.”It said even if the AG succeeded in driving home that the nine-judge bench judgment needed reconsideration, it would help the government little in proving the constitutional validity of NJAC.“We will uphold the validity of NJAC if you are able to show that NJAC is constitutionally valid and protects the independence of judiciary. You are not ready to show the merits of NJAC and instead are focusing on nine-judge bench,” the bench said.Rohatgi remained adamant and said the moot question posed by those challenging the NJAC was that the new system took away the CJI’s primacy in appointment of judges as was declared by the nine-judge bench. “But they forget that the Constitution never intended to give primacy to the CJI,” he said.The bench again told the AG not to waste his breath on the nine-judge bench judgment. “You have to show that the NJAC system adopted by Parliament is equally protective of the independence of judiciary. In deciding the validity of NJAC, it does not matter whether collegium system gave primacy to the CJI,” it said.Disliking the bench’s insistence to focus on the NJAC rather than the unconstitutionality of the SC-devised collegium system, the AG said, “Why should the court not allow me to show that the nine-judge bench decision giving primacy to the CJI in judges’ appointment is wrong?” The court allowed him to present arguments the way he deemed fit.Referring to constituent assembly debates, Rohatgi said the framers of the Constitution had advocated a synchronized role of legislature, executive and judiciary in the selection of judges for superior judiciary.The bench said even in the collegium system, the executive had a substantial role to play. “There are two examples where the CJI did not agree yet the appointments were made. So, despite the collegium system, the President had his say in the appointments.”