New Delhi, May 6: The controversial appointment of a judge to Calcutta High Court today figured in the arguments in the Supreme Court over the National Judicial Appointments Commission, setting the stage for a sharp exchange in the courtroom and a question why the Bengal government did not raise objections then.

Attorney-general Mukul Rohatgi, representing the Union government, cited the instance of Justice Shukla Kabir, the sister of former Chief Justice of India Altamas Kabir, being appointed to Calcutta High Court at the age of 59 in 2010.

The attorney-general cited the example without mentioning her name while criticising the collegium system of choosing judges that the NJAC has replaced.

"A judge is appointed to Calcutta High Court at the age of 59 because she was related to the former CJI," Rohatgi said.

In 2013, a controversy had broken out after the then Gujarat chief justice, Bhaskar Bhattacharya, complained that he was not considered for elevation to the Supreme Court by Chief Justice Kabir as he had opposed the appointment of the Chief Justice's sister in Calcutta High Court.

Besides the allegation of nepotism, her appointment at the age of 59 had drawn comment in legal circles. Normally, judges to the high courts are appointed between the ages of 55 and 57 and they retire at 62. (Justice Shukla Kabir retired last year.)

The attorney-general also cited the example of Justice P.D. Dinakaran, whose elevation to the Supreme Court was recommended but who had to quit as Sikkim High Court chief justice in the midst of an impeachment attempt in Parliament over alleged misconduct relating to some land-grab cases.

The question being debated in the Supreme Court was the merits and demerits of collegium system, under which the judiciary alone chose the judges. In the NJAC, the executive and two eminent persons also will have a role, along with the judiciary.

However, the apex court today responded to the two instances by faulting the Union government and the governments of Bengal, where Justice Shukla Kabir was based, and the Karnataka government, where Justice Dinakaran was posted before being shifted to Sikkim, for not raising any objections.

The collegium cannot be blamed, said the bench of Justices J.S. Khehar, J. Chelameshwar, Madan B. Lokur, Kurien Joseph and A.K. Goel.

Justice Khehar, heading the bench, said all information on the bona fides and personal credentials of the prospective judges were obtained by the collegium from the state governments, the chief justice concerned and the Union government. Only after the inputs were received did the collegium make the recommendations.

Usually, the state intelligence wing and the Intelligence Bureau of the Union government furnish the inputs through the government concerned.

The bench asked Rohatgi: "Why did you not say 'no' to the appointments, you had all the information, but you did not oppose it. Why did the state government (of Bengal) did not oppose it? And what about the Union government? You could have just asked us 'what is happening'? Then we could have intervened."

The attorney-general said: "Yes, I am (the Union government) in default."

The attorney-general contended that a Supreme Court ruling in 1993 giving primacy to the Chief Justice of India in the appointment of judges had wrongly interpreted that transfer of judges from one high court to another was not subject to judicial review.

He then referred to the transfer of Justice Dinakaran as the chief justice of Karnataka High Court to Sikkim High Court, instead of divesting him of his duties despite serious charges against him.

Justice Khehar intervened to ask: "Under what provision can he be divested of work?"

Rohatgi agreed that there was no provision to divest a chief justice of his or her work.

"If there was a flaw in the recommendations (of the collegium), it was a flaw the government should have brought to our notice. But you did not bring it. Rather it was a lawyers' forum (the Committee for Judicial Accountability) and some parties which brought the issue to our notice and he (Justice Dinakaran) was not elevated. The memorandum of proceedings relating to the appointment is prepared by none other than the law minister," the bench told Rohatgi.

Justice Khehar said that from his personal experience, he knew that the allegations notwithstanding, Justice Dinakaran handled the judicial side admirably although his alleged misconduct could not be condoned.

Rohatgi countered it, saying the collegium cannot say that a judge can be a good person between 10am and 4pm and thereafter indulge in other illegal activities.

Justice Khehar replied that the Constitution bench was also hearing the attorney-general between 10am and 4pm and knew that he was a good counsel. At the same time, he said "what you do before 10am and after 4pm, we do not know. It is only the government which knows about it."

Larger bench query

The court today indicated it would explore whether the question of the constitutional validity of the NJAC needed to be referred to a larger bench of 11 judges.

Rohatgi repeatedly urged the court to refer the matter to a larger bench. He pointed out that it would be a waste of time if the current five-member bench, after another 10 days of hearing, decided to refer the matter to a larger bench.

Justice Khehar asked senior counsel Fali Nariman, appearing for the main petitioner, to respond by tomorrow on Rohatgi's plea.

The Telegraph had reported on April 15 that a section of legal circles had opined that a larger bench might be needed since a nine-judge bench had concluded in 1993 that the judiciary had primacy on the appointment of judges.