The Supreme Court Advocate on Record Association (SCAORA) on Wednesday questioned in the apex court the central government’s claim that junking the collegium system for National Judicial Appointment Commission was “the will of the nation”.
Assailing the government’s contention that the “nation wants it (NJAC)”, “people want it”, SCAORA wondered which nation the Narendra Modi government was referring to: the nation of haves - whose numbers are fast increasing - or the nation of have-nots - whose condition, hopes and expectations have not markedly improved over the decades.
“I would suggest that no one may speak (or claim to speak) on behalf of the nation as the nation is never before the court,” senior counsel Fali Nariman told the apex court constitution bench comprising Justices JS Khehar, J Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel in his rejoinder arguments on behalf of SCAORA
To buttress his position, Nariman referred to an earlier judgment of the apex court which said “no one may speak for parliament as parliament is never before the court”.
Contending that the primacy of the judiciary as a concept that was an “anathema” to the elected representatives both in parliament and state legislatures, Nariman referred to several amendments to the Constitution to neutralise Supreme Court verdicts.
Taking advantage of the vulnerability of the collegium system for appointment of judges to higher judiciary on account of its “lack of transparency”, Nariman said, NJAC had been brought forth, which however “totally erodes and greatly damages the independence of judiciary”.
Advocating transparency in the selection of judges to the extent of maintaining a record of the criteria and exercises that underwent in the selection process, including recording the minutes, Nariman cautioned that exposing the system to public scrutiny through Right to Information Act would have its pitfalls.
Describing it as “a bit alarming”, the SCAORA cousel said exposing the “confabulations and consultations” to public scrutiny would subject the appointment process to public, political and media pressures.
Meanwhile, the central government defended the introduction of NJAC Act, 2014, and the Constitution’s 99th amendment simultaneously in parliament in August 2014, saying that the same could not be questioned on the grounds of competence of parliament to do so or any infringement of the procedure as the same could not be questioned before the court.
Earlier, Supreme Court Bar Association (SCBA) president and senior counsel Dushyant Dave tore into the collegium system saying “what had happened in the past 22 years under the collegium was difficult to digest” and there was “so much of frustration and disappointment”.
The collegium system was introduced by the apex court by its verdict in second judges case in 1993.
“Some of the finest judges were denied (elevation to apex court) and elevation of some of the finest judges was delayed, merely because someone in the collegium did not like them,” Dave told the apex court adding that it had become a “give-and-take” exercise.
When the bench asked why the executive did not object to it, Dave said, “Executive wants pliable judges. They want weak judges. They (government) know how to manipulate” such judges for their selfish ends.
Justice Khehar reminded that there were thousands of judges who were working hard day in and day out to make the system work and what the senior counsel was pointing to was the conduct of a few.
As Dave went hammer and tongs on assailing the collegium system, Justice Khehar said, “We are not making any comparative evaluation of NJAC vis-a-vis the collegium system but “testing the NJAC validity on the touchstone of its constitutionality”.
Justice Khehar asked Dave to give suggestions as to how to remedy the situation.
In his no-hold-barred attack on the collegium system, Dave regretted that the apex court had failed to protect the “human rights and human values” of the common man. Describing it as a “shame and disgrace”, Dave said that “every court goes an extra mile in protecting the people’s human rights and values”.
He said that everyone accused in encounter cases in Gujarat was being let off but social activist Teesta Setalvad was running from pillar to post for her bail.
On the other hand, Dave said, former Gujarat minister Maya Kodnani -- sentenced for her role in the Naroda Patiya massacre during the 2002 Gujarat riots to 28 years in jail -- was granted bail.
threads most popular
thread most upvoted
comment newest
first oldest
first
Will the AG tell us how many corrupt politicians rule the country? Will he therefore question the electoral democracy which installed them in the seats of power? It only strengthens a political system if there is a strong and independent Judiciary, media and political opposition and civil society. The Collegium system may have yielded certain bad results but overall, role of Executive to appoint judges will give unhindered supremacy to others and thus will certainly influence the impartiality of Judiciary. The government is treading uncharted territory which will ultimately prove to be the nemesis for the effective working of the system of checks and balances.
The appointment of the Judges is an important diminishment of the independence of the judiciary. The constitution and its writers did not envisage a system where one organ enjoyed complete freedom. Already the judges are accountable to no body. Politicians can be arrested and must face a 5 year review. Bureaucrats can be removed from their positions far more easily than Judges. It takes the equivalent of a constitutional amendment to impeach a judge, and that is the ONLY accountability we have over them. Controlling their appointment is hardly going to destroy their independence, especially given the powers they enjoy over the other organs of the state.
The role of the executive in appointing judges was how the Constitution was originally written. Am I to understand that the basic structure doctrine is one that will only be used against Parliament but never against the Judges? That the Judiciary can overturn basic aspects of the constitution as they like when they feel like it? The Government is not "treading uncharted territory" here at all, it is infact returning to well charted territory, territory which was deemed appropriate by the CONSTITUTION of INDIA. A territory from which we have strayed very far away by the power-grubbing of the Constitution.
The role of the executive in appointment does NOT give them unhindered power. It speaks to the hypocrisy of the legal community and of "eminent" lawyers they refuse to accept any oversight over themselves, despite consistently enlarging their own authorities. The Supreme Court abrogated to itself the power to investigate crimes through SITs, abrogated the power to strike down laws as it saw fit, but refuses to accept any accountability under the premise that the independence of the Judiciary is paramount? What of the independence of Parliament? Of the Executive? Do we live in a democracy or a Judicial Oligarchy? The Supreme Court has even taken to over-ruling and reviewing presidential decisions related to pardons, and now even the High Court has taken to over-ruling Presidential pardons, but if Elected representatives and Civil Society are involved in the appointment of Judges its the end of the world? The Judges swear an oath to uphold the constitution, not desecrate it, something they forgot when they instituted the Collegium system, which only protects them not the interests of the people or the Constitution of India. The AG is not required to talk about corrupt politicians, they have been ELECTED. The Judges appoint themselves, and allow NO OVERSIGHT. And if you try to merely control this process, leaving aside the enormous freedoms which they have illegally abrogated, that's a mortal blow to Judicial Freedom?
The collegium recently chose Rohinton Nariman for appointment to the Supreme Court Bench.
His father Mr Fali Nariman admitted in his book that he has been sometimes consulted by the collegium on judicial appointments. Such a consultation is not only ad hoc but involves a conflict of interest.
In which country do individual 7 star lawyers lawyers get hand-picked in an opaque and arbitrary process to comment on judicial appointments.
Just saying, the Supreme Court of the early 1990s which usurped the power to appoint judges was also the same SC which passed the unconscionable Bhopal gas leak judgments. In that matter Mr Fali Nariman represented Union Carbide and supported judicial orders whereby the GOI not only claimed to represent the people but also claimed to be able to represent and settle personal injury claims on their behalf with a US MNC.
Both Mr Fali Nariman and Mr Anil Diwan were appearing for Union Carbide then.
Both Mr Fali Nariman and Mr Anil Diwan are opposing the NJAC now.
The SC of the early 1990s ...
threads most popular
thread most upvoted
comment newest
first oldest
first