The Central government Monday urged the Supreme Court to refer to a nine or 11-judge bench the reconsideration of 1993 judgment which took away from the government the power of appointing judges and vested it with an apex court collegium headed by the Chief Justice of India.
As the government pressed for the reconsideration of 1993 nine judge bench judgment, the Supreme Court Advocate on Record Association (SCAORA) - which is opposing the National Judicial Appointment Commission (NJAC) - described the plea as futile and a tactic to delay the challenge to the validity of constitutional amendment act and the National Judicial Appointment Commission Act, 2014.
Senior counsel Fali Nariman, appearing for SCAORA, told the constitution bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice AK Goel said that even if after the reconsideration, the bench of nine judges or eleven judges reiterates the position taken by nine judges in 1993, it was not going to make any material difference.
This was because after 99th constitutional amendment act, 2014, the basis of the 1993 judgment have been washed away from the article 124 of the constitution and the NJAC has substituted the collegium system for the appointment of judges to higher judiciary.
Rejecting the contention that the central government was seeking the reconsideration of 1993 verdict - as known as second judges case that gave judiciary primacy in judicial appointments - to delay the hearing on the challenge to the NJAC, Attorney General Mukul Rohatgi told the court that it could always reconsider its earlier verdicts under “compelling circumstances” or to overrule any “questionable decision”.
Addressing the contention by SCAORA that in the event of court striking down the NJAC, the collegium system would be revived, Rohatgi said even if the court strikes down the NJAC it would not mean resurrection of the collegium system which stands buried with the amendment of the constitution.
Even as the arguments will continue on Tuesday, the court asked the attorney general to consider the fate of additional judges of the high courts whose tenure would be coming to an end during the courts of the hearing of the batch of petitions challenging the NJAC
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Maybe its time for Kesavananda Bharati to be tested.
He has lost a point on which the law was in his favor.
Bad strategy as well in conceding on interim relief before today's ruling.
Also, I read that Rohatgi's arguments were on the lines of -to paraphrase a bit, - that the SC should go the "whole hog", etc.
He will now lose the case in its entirety including on the issue that the collegium cannot be revived by the SC even if it strikes down the NJAC.
The 5 Judge Bench will strike down the NJAC amendments as being violative of the basic structure of the Constitution and the Bench will declare that these amendments have no force of law and that the Constitution does not stand amended. Hence the Collegium as defined under the 1993 & 1998 decisions continues to operate.
Is there a chance the GOI deliberately messed up its arguments because it wanted to lose?
Because it took so much effort to lose on this point.
But the SAM-CAM upstaging does beat even the rewriting of the Constitution. The SAM-CAM competition has started right here on legallyindia ...
Several times going by reports on his arguments.
This is what Rohatgi argued.
"I dare say this that it is a case of extreme importance". This ground alone can be used to refer it to a bench of "sufficient strength"
He further submitted that the bench cannot say that it will decide the issue of validity of the NJAC before going the "whole hog".
Rohatgi submitted that the question involved is of great "importance" and said, "suppose, the court strikes down the NJAC, then what will happen. The question is that can the old system, which is dead, be revived?".
“I dare say it produced some of the best judges”.
“I dare say this but there are several examples like this. And what was the weightage given to the letter written by a fellow judge? How was that not important to collegium?” Rohatgi told the Constitution Bench led by Justice JS Khehar, as reported by /Express/.
The above are from various news sources.
“I dare say that the job of the judges is to decide cases. It is not their job to appoint their brethren. It cannot be said to be a facet of the independence of judiciary that judges must appoint fellow judges.” - See more at: indianexpress.com/article/india/india-others/judges-job-to-decide-cases-not-appoint-brethren-govt-to-sc/#sthash.cmGLlCmR.dpuf
"I dare to say let us call spade a spade," he said, adding, "nobody is entitled to know the decision taken by the collegium".
Btw the following argument by Rohatgi probably had an effect contrary to what he intended. Not the best way to put this in my opinion.
"Rohatgi referred to structureal schemes on higher judiciary saying "the independence of judiciary is subject to checks and balances and it cannot be insulated by adopting a specific method of appointment." He said the independence of judiciary can be found in the Constitution which guarantees various aspects like security of tenures and manner of removal of a judge. "A specific process of appointment could be a point in the independence of judiciary but it could not be the fulcrum of independence," the Attorney General told the bench. The appointment procedure is not so "pivotal" to the independence of judiciary and the question which needed to be considered is whether the process is "so obnoxious" that it will hit the doctrine of "basic structure". "The Constitution only supplys for ample maintenance of sufficient independence of judiciary and not absolute independence," he said."
And again
"In a democracy, he said the public is supreme and the judges "exist" because of the common people."
I think Rohatgi did a lousy job in arguing this matter. He doesn't have sufficient gravitas and his arguments as framed lacked the weight of legal and constitutional reasoning and the weight of authority.
You cannot argue a constitutional point like this the way you would argue for a stay on demolition for instance.
"Prayer made by Attorney General for disposing of the issue for reference to larger Bench for revisiting two judgments of the Supreme Court in 1993 and 1998 to be decided first as preliminary issue before hearing the case on merits, is declined."
This order is curious, it states that the SC has only rejected the plea that the issue raised requiring a larger bench be decided as a preliminary issue.
Therefore, during the hearing on merits, the SC is still open to being convinced that the matter can only be decided by a larger bench.
Read in this manner and which appears to be the only correct interpretation, the news reports that the Court has rejected completely the plea for a larger bench are wrong.
Is this why some tweets cite PTI to say that court could still make a references to a larger bench?
This matter will require a lot of research, and arguments will involve hair-splitting minutae. Rohatgi has no patience for such laboured research or arguments where only the weight of authority will compel the Bench to move away from its natural and expressed inclination in this matter.
Also, the Center has already messed up in the way it has handled the matter so far. I am completely against the collegium which has created a corrupt nepotistic club of a small number of lawyers and judges.
But the NJAC Act is badly drafted. The Statement of objects and reasons for the constitutional amendment act is so badly drafted that its a joke. This statement will play a crucial role in whether or not the amendments are upheld.
This statement should have been forthright on the defects in the collegium system, the reasons why it was undesirable,it should have stated that the collegium was the result of an unconstitutional usurpation of power, that judges cannot appoint judges, that judicial appointments are not a judicial function, that the collegium had proved detrimental to both judicial independence and judicial accountability, that judicial calibre and integrity had fallen in the last 20 years, that transparency was needed, that judicial appointments under the collegium were being influenced by factors which ought not to be relevant, and that the 1993 and 1998 decisions were wrong in how the basic structure doctrine was applied, etc.
Instead the only justification for the amendments in the statement of objects and reasons is the following sentence:
"The said Commission would provide a meaningful role to the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process."
The statement foes not even say that the 1993 and 1998 decisions were wrong in interpreting "consultation" as "concurrence".
In my view, the Parliament should have been given the role of approving all judicial appointments and the Prime Minister and not the law minister should be in the NJAC.
"Two alternatives are available to the Government of the day. One is to seek a reconsideration of the three judgments aforesaid before the Hon’ble Supreme Court. Otherwise a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments."
The Government has done a terrible job of selling/ justifying its case for reversal of the collegium system to the public and to the legal community, in the amending acts or even in court arguments. The Center has perhaps tried to shy away from calling a spade a spade and has avoided critiquing the collegium and its outcomes. But this will be counter-productive and has given those (including on the Supreme Court Bench) opposing the NJAC an edge over the Government.
His frank comments on our higher judiciary are something that our leading celebrity lawyers have no guts to say. He writes:
" The judiciary is refusing to face up to a serious crisis of credibility. There is a perception that the process of appointments is not yielding the desired quality. Internal discipline in the court hierarchy is broken. Witness the extraordinary spectacle in Madras of a high court judge bringing contempt proceedings against a chief justice, and the Supreme Court responding to this through legal rather than administrative measures. In public perception, the judiciary carries the odour of both incompetence and corruption. One effect of the J. Jayalalithaa case, whatever the facts of the matter, will be to send a signal to lower court judges that guilty verdicts in high-profile cases are unlikely to be backed up by higher courts. We deride lower courts a lot. And much is wrong with them. But it is hard to argue that judicial courage or credibility rises the higher up the system you go. The judiciary’s assurances to “trust us” are less credible than a decade ago. Seven star lawyers can make the judiciary starry-eyed about its own virtues and, therefore, its entitlement to be exempt from outside scrutiny. No one else is convinced."
I reproduce two more brilliant paragraphs from his article here which speak truth to our Supreme Court Judges:
"The formalism of the arguments can barely mask this crisis of trust. We want more transparent appointments. But here is the bad news. The formal design of the system has little bearing on quality, which will be determined by the persons, not the principles. We want more “criteria” specified for selection. But selection involves judgement, it cannot be robotically reduced to transparent criteria. This is the false comfort of formalism lawyers peddle. Or worse, even if you specify formal criteria, they will do little to ensure quality. Even if you say things like “eminent jurist”, “senior advocate” and so on, the blunt truth is there are eminent jurists and eminent jurists, advocates and advocates, even chief justices and chief justices. Giving, in public, reasons why candidates may have been rejected can often be an act of injustice against them. Let’s face it: This issue has come to a head because there is a deep crisis of character. And we think a formal process can be a fix. We forget that independence is not a quality inherent in an institution. It has to be claimed and reclaimed through regular conduct and action.
The current method of appointment was a usurpation of sorts. Some input from outside is important. Judging is too important to be left only to judges. In this light, the proposed NJAC is worth trying. The formal arguments against it are weak. It is not a violation of the basic structure, another fuzzy judicial invention that served an institutional purpose but has no principled basis if used indiscriminately. The mere presence of non-judicial members on a committee to appoint judges does not compromise independence. Is there a potential conflict in that the government is a major litigator and this puts the chief justice directly in a “negotiating” position with it? Possibly. But our apprehensions on this come more from our lack of faith in our chief justices."
As law students and lawyers in India, we are repeatedly told that the basic structure doctrine was a sacrosanct creation by judges trying to protect our democracy. But Mehta, an outsider to this legal community discourse, reminds us that even this doctrine is open to misuse. Therefore, I for one would like to see a 15 judge Bench test Kesavananda Bharati.
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