The government today told the Supreme Court that the collegium recommended and reiterated the appointments of people as judges despite adverse Intelligence Bureau reports and “severe” comments by its own judges questioning their ability and integrity in some cases.
Attorney General (AG) Mukul Rohatgi on Wednesday submitted to the court a list of names running into 10 pages with comments from the Intelligence Bureau, the government and the apex court judges to drive home the point that when the collegium insisted on such recommendations, the government was bound to accept them.
“Sometimes, we are forced to choose somebody” that the collegium has recommended and reiterated despite adverse IB reports and critical comments by the apex court judges and the reservation of the government, Rohatgi told the court.
He said that in one instance the President himself noted in his own hand and returned the recommended names for fresh consideration.
The matter relates to the appointment of two judges to Jammu and Kashmir High Court wherein the apex court collegium recommended one name for appointment as judge while withholding the other name when the reservation in both the cases was the same.
In the instant case the then President KR Narayanan returned the recommendations for reconsideration noting that both stood on the same footing.
“President of India made a note in his own hand saying both seems to be similarly situated agreeing with the line of the judges” having reservation about their appointments,” Rohatgi told the court.
Citing various instances, Rohatgi told the court that in one instance, a former chief justice of India, just a few months before his retirement, sought recommendation from the chief justice of a high court from eastern Indian state, of a name that was discussed and declined by the collegium earlier.
“Chief justice of this court, just before demitting the office revived a proposal, asking recommendation from the chief justice of the high court,” AG told the court asking ‘where was the occasion for it” pointing to inexplicable things happening under the collegium system.
He said that this “case had nothing to do with any adverse comments (either by the IB or by apex court judges) but some other principles were operating.”
The government furnished this information to the court after it had sought to know that in how many cases the collegiums reiterated recommendations despite adverse reports and government returning them.
The court was told that collegium recommended names where there were “severe” adverse comments from the apex court judges in respect of the names emanating from the high courts where they had served either as a judge or as a chief justice or both.
The attorney general told the court that in one case there were reservation in respect of a proposed name allegedly for possessing assets disproportionate to his known sources of income and in another there were question on the integrity of the proposed name.
As the attorney general referred to the reservations expressed by the apex court judges in respect of some names, Justice JS Khehar, heading the constitution bench, observed that these were general in nature and there was nothing concrete in them.
Referring to a judge who showed “no sense of discipline or sense of dignity of the court” Rohatgi told the court that it “never happened that a bench of the apex court will not sit till half of the day”.
But in the instant case when the said judge was a junior judge in the bench, the presiding judge used to wait for her and when she herself became the presiding judge the junior judge used to keep waiting for her.
AG asked that since the practice of the said judge not coming to court on time was known ever since her days in the high court, then how was she elevated to the apex court.
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:)
This business of handing over in sealed cover a list of questionable judicial appointments is another strange turn in this matter.
First I am not sure whether a written direction was given asking for such list. Second who decides what names go on this list unless there is an inquiry in accordance with law by the relevant authority, which can only be the Parliament. This list is not justiciable. This Bench has no authority to "judge" such list or to comment on it. So whats the purpose of requesting and furnishing such a list.
Also this whole business of scratching backs, involves not just the collegium and judges but the political class as well, plus others with influence, so-called leaders of the bar, so-called senior advocates, industrialists, ministers, influential editors etc. How and why undesirable judges get appointed and how judges lose their independence involves a complex environment of actors and interactions where corruption thrives. Blackmail of judges or fear of blackmail is one of them.
Even under the collegium system, the problems with judicial appointments involved politicians also.
What I wanted to ask you was what according to you is the present mindset of the bench judging this challenge, what you think would be the trajectory of this case in the upcoming months and for that matter, how long do you reckon this matter will stretch in the Court before we get some answers?
The way its going, the matter should end in a few days with a defeat for the Govt. This Bench cannot uphold the NJAC because of the previous Judges cases which bind it, it can either strike down the NJAC or refer to a larger Bench. Since Rohatgi did not raise the larger Bench issue again, it looks as if the NJAC will be struck down.
But the focus of the decision will be that the NJAC amendment and acts are unworkable.
That's what I think might happen after how today went.
However, this Bench does appear hostile to the NJAC, the trajectory would depend upon how the Govt argues this case and what steps it takes, it could either be disposed off by this Bench which would probably find the NJAC unconstitutional or unworkable as enacted, or it might still be compelled to refer this matter to a larger Bench. The Govt can help such reference along by making a written application or by a presidential reference etc.
If the five judge Bench decides the case, the govt should lose because this Bench is bound by the earlier judges cases.
I am against the collegium but am also disappointed in how poorly conceived the NJAC is under this amendment and Act, its a half step whereas more than 20 years after the collegium was put into place, the reforms should have been bolder, more complete and more foolproof. Criteria for judgeship are still not spelled out, neither is the process of vetting a candidate. Is the NJAC the best possible answer - I think not.
The Modi government acted in haste in pushing this through, they should have spent a year re-looking at this issue and come up with a better mechanism.
Also, I don't think the govt is doing the best job of defending the NJAC, whether that is because of the law officers involved or some other behind the scenes agenda, I don't know.
I wish these hearings were being recorded for posterity and were being broadcast.
Appointments to the High Court and the SC have been based on nepotism for time immemorial. Take the appointment of Senior Chandrachud. He was the Son in Law of CJI Gajendragadkar. His appointment to the Bombay High Court was manipulated to ensure that he would be the longest serving CJI.
The Bombay High Court is a club where, most of the time progeny are given preference over merit. Take Sharad Bobade, Ajay Khanwilkar and Dhanjaya Chandrachud. Sharad Bobade is the son of Arivnd Bobade, and Dhananjaya Chandrachud is the son of CJI YV Chandrachud. Sharad Bobade took the oath of office at the Bombay High Court first and became senior; Khanwilkar next and Chandrachud third. Bobade is already on the SC Bench and will retire as CJI. Khanwilkar and Chandrachud are trying hard to go to the SCI.
In the meantime on the SC Bench are Rohinton Nariman, son of Fali Nariman, and Uday Lalit, son of Umesh Lalit.
Nepotism anyone.
I am terribly cynical. How I long for MC Chagla and Seervai.
""People outside the judiciary must also have a say in judicial appointments. They are the largest consumer of justice delivery system and must have a say. Appointment of two eminent persons in NJAC is a decision to bring such people on table. What is wrong if a person of the stature of Satyajit Ray, MS Swaminathan, Verghese Kurien, Bill Gates, Steve Jobs or a cricketer or film star are appointed in the panel. They have deeper understanding of society and culture than judges," the AG said."
And
"Describing NJAC as a broad-based system than the collegium, he said the two eminent persons would bring in "diversified views" in the appointment process."
timesofindia.indiatimes.com/india/Civil-society-must-have-a-say-in-judges-appointment-Centre-tells-Supreme-Court/articleshow/47635997.cms
Is this how the Govt understands the role of eminent persons in the NJAC?
Once again, How dumb are the lawyers advising the Govt on the NJAC issue!
Actually I glanced through the written submissions of the AG published by his office at t.co/Skt9SHsbIK and they don't look too bad, my opinion is of course subject to a proper reading.
Well the petitioners might well succeed on the point that the Constituent Power to amend the Constitution is subject to 'stare decisis in this case meaning that the collegium's concurrence is part of the basic structure as found by the two larger benches in the 1990s.
That's where this matter was headed from day 1, do you think the AG will succeed in getting a reference to a larger Bench. I think not. The Govt should have fought harder for that.
I suspect the decision will be that the NJAC is unworkable, ill-conceived etc for a, b. c, d, etc ... reasons and is struck down, and that it also violates basic structure but that the Bench sees no need for a larger Bench as the NJAC is bound to fail on the first point in any case.
Tweets about Venugopal's arguments confirm this, the bench has said it will not give reasons for refusal to constitute a larger bench if it strikes down the NJAC. It has said that the collegium will revive if the NJAC is struck down.
There were some tweets about some contradiction between Rohatgi's arguments and those of KKV. Apparently the SG Ranjit Kumar said he would address that issue.
So do you think the AG will win this case?
I think the American people would be appalled at the idea of Steve Jobs or Bill Gates choosing US Supreme Court judges.
And I certainly don't think either Satyajit Ray or his ghost, or MS Swaminathan, or Verghese Kurien should select Indian judges.
How myopic is the Govt's vision of eminent persons if it encompasses film stars or cricketers. So Sachin Tendulkar and Amitabh Bachchan then?! This makes me want to comment on Indian society and who we admire and who we ignore, but I won't.
I also find the phrase eminent person very hierarchical and undemocratic. The Americans would never use it in their Constitution. There must be a better and more egalitarian way to put this. A description of the attributes of such persons would have been more fitting. High integrity, high intelligence, accomplished, basically a person with a conscience, incorruptible, who could contribute to a team vetting and selecting a judge by understanding and evaluating the material placed before him/ her and by ensuring that the processes within the NJAC remained fair, efficient, honest, etc.
A watchdog ...
So out of all the names Rohatgi gave, two are Americans so ineligible, two are Indian but dead, and the last is controversial and not exactly the best example.
Then we get left with film stars and cricketers.
Not much thought put into this by the Govt and AG then.
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