I do, however, agree with Law Minister Rijiju. A state rep in the collegium could balance the scales and reduce favouritism and nepotism.
I respectfully disagree with Lokur's proposition - that the State would, in effect, elect its judge by having its rep on the collegium. Notwithstanding a Section 11 scenario, don't parties (to disputes) select their choice of candidate (on occasion, retirees like him) to arbitrate their disputes? How is Rijiju's prescription any different?
However, I found their interpretation of the NJAC Judgement interesting and delve-worthy. Many minutes went by, pontifying what the Hon'ble Supreme Court meant with its use of the term 'restructure' in the context of the Collegium's MoP. All this happened despite Lokur revealing that he hadn't even read the judgment! He wouldn't have gone down this rabbit hole had he known that this judgment doesn't even use the term 'restructure'.
Irony died a million deaths with these two faulting Law Minister Rijiju's plea for change (with a state rep in the collegium) that is inconsistent with the NJAC Judgment without acknowledging that the collegium isn't even a byproduct of the Constitution of India!!
The arbitration analogy is a singularly unsuitable one in the current context.
First of all, does the individual litigant who is trying to enforce his rights against the state get to choose the judge too? If not, then why should the state, the other party, get to exercise such choice?
Secondly, these judges will also adjudicate disputes in which the state would not be a party. Why should the state get to have a say in selecting such judges?
Thirdly, not all disputes are arbitrable, such as criminal ones.
Para 2 - Does the individual litigant have a say in the existing system? No.
Does a state rep on the collegium result in the state exercising such a choice - No. Why? Nowhere has the state asked for a veto right. Your understanding stands on this flawed and baseless assumption.
Having a state rep on the table offers the state (voice of the people) - to a nominee, which the majority can shoot down - if needed. More importantly, a state rep is, at most, a voice against tyranny (nepotism and favouritism).
You haven't watched the interview or are too proud to challenge your views with critical thinking. Had this not been the case, you would've known that Law Minister Rijiju has also prescribed an expert/ advisory body to support this process. ▮▮▮ take the time to understand what this entails.
Para 3 - criminal cases aren't arbitrable. This rather known fact has no relevance or application to the question at hand and the arbitration reference made by me.
You were the one who used the arbitration analogy to say that there the parties have a say in deciding who the arbitrator is going to be. If according to you the state isn't getting such a right here, then why even use that analogy? For someone who condescendingly asks others to do critical thinking, you seem to be doing remarkably less thinking.
As for saying that the lack of a veto power means that the state doesn't have a say, that's just selectively convenient argument. Just by being in that committee, the representative gets to have a 'say'. It is part of a slippery slope from there to influence the other members by hook or crook, as we have seen political parties do time and again.
As for expert parties suggested by Rijiju, we have all seen how this government 'appoints' experts to suit their agenda. TBH, other governments have done the same earlier.
That criminal disputes aren't arbitrable but adjudicated nonetheless means that the parties there do not get to have any say in selection of the judge. In this case too the judges selected will be adjudicating non-arbitrable disputes too, so there's not even any questionable analogy to suggest that the parties of those cases should have any say in the selection of the judge. One would have thought it obvious, but clearly your brand of critical thinking failed to spot it.
The arbitration analogy merely debunks the proposition that, in no scenario, in today's context, are disputes adjudicated by professionals over whom neither party has a say in nominating.
Let me break this down for you -
Point 1 - There's a process behind appointing a judge and an arbitrator;
Point 2 - nomination of a candidate from a talent pool and consensus (of relevant stakeholders) are hallmarks of a transparent process;
Point 3 - judicial appointments since the advent of the collegium have, inter alia, long been tainted with accusations of nepotism and favouritism (in relation to some candidates);
Point 4 - there are accusations of nepotism and favouritism even in relation to selecting senior counsels;
Point 5 - as a result of points 3 and 4, the legal services market is pretty much at the mercy of a certain cabal - when selecting counsel/ senior counsel in sensitive and high stake cases (which explains why there's a disproportionate share/ distribution of work among young lawyers);
Point 6 - it has been over half a decade, and no meaningful reforms have been introduced to bust this cabal (dare I call it a mafia - given what sway some of them have in corridors of power);
Point 7 - in a democracy, it is the duty of our elected leader/ minster to hear all voices and work towards legislating change;
Point 8 - all that Law Minister Rijiju did was:
-echo our voices against nepotism and favouritism; and - offer his prescription against such tyranny - through open dialogue;
Point 9 - Law Minister Rijiju's prescription broadly prescribes two enhancements to the nomination process-
- a seat on the table for a democratically elected representative of the People of India (i.e. the Law Minister/ any other appointed representative of the State); and
- a nomination process that is backed by experts (note - experts typically offer an advisory role, and the Law Minister hasn't suggested anything otherwise in his prescription)
Point 10 - let's now go over the good that will come from all this -
a. the people of India have a voice and a seat on the table through their elected representative, and this voice can and should serve as a check and balance against the tyranny that has crept into the judicial appointments process (i.e. lesser or no nepotism/favouritism); and
b. no more cleaning of dirty linen in public - the present situation is a disgrace with both stakeholders adopting subterfuge to put forth their points of view (the deliberations of the proposed, upgraded collegium can be kept private without diminishing the reputations of self-esteem of rejectees)
Point 11. Paras 2, 3 and 4 are loaded with your mistrust towards the present dispensation and biases. But here’s the thing, sir -
Your rebuttal is batting for the status quo. Law Minister Rijiju is batting for dialogue - which is where all stakeholders get to identify loopholes and formulate a cohesive, transparent, inclusive and reliable policy.
Actually, I did not bat for the status quo. Just that the government should not play a role in it. Which is what Rijiju is asking for. As for the 'dialogue' that he seeks, sure, it doesn't even happen in the Legislature itself, as the circumstances behind the passage of Bills have shown in the past years, but we are supposed to accept that it will happen in this case. It is a simple thing really, the government cannot be trusted with having a role in the appointment of judges. Look at what they have done with the little role they have now, such as nixing/delaying Kirpal's elevation on the ground of his sexual orientation. Who would trust them to act in good faith ever?
Couple of points - if you're equating this with arbitration, where Govt can select its own candidate, you don't get to do the same for the other litigant. So let's not go down this path. And remember, the judiciary is supposed to keep Govt in check, and you can't do it when govt has a say in who becomes a judge. The last resolutions of the collegium have disclosed the kind of objections raised by govt so there's a question of neutrality. And lastly, since judges appointment is concerned and we're discussing what the judges case said for restructuring MOP etc, why we aren't discussing the other aspect of appointing judges once the name is reiterated? Not to mention, sitting on the files without reverting for a long time?
Having a state rep (a voice of the people) on the collegium does not tantamount to holding a veto vote. Your comment reveals this flawed and baseless presumption.
Past nominations have been suboptimal, with favoritism and nepotism creeping into the selection process. A fact that even anti-Modi voters won't deny.
A state rep (without veto) and a collegium supported by a panel of experts and eminent persons can/ should -
1. better ensure that the state exercises its vote and speaks with more responsibility and good information; and
2. better ensure a reduction in instances of favoritism and nepotism in the appointment process.
Can an improved system be beaten?
Ans Yes. Because there isn't such a thing as a flawless system anywhere in the world.
Should the status quo continue simply because a step in the right direction isn't a "guarantee" against tyranny?
There's a basic flaw in your argument. The moment State representative comes in, even without veto, there's an effect of bowing down. That's what is needed to be stopped. Government can't be a stakeholder at all in appointing a person who would decide a case with Government as a party. I rest my case, because it's clear that there're two very different thinking here, and we won't be able to reconcile. So cheers, each one to its own.
I agree. I can't (and shouldn't) argue logic and common sense against bias:
Bias demolishes one's patience and space for dialogue. It has evidently inhibited your ability even to appreciate that Law Minister Rijiju has so far:
- delineated the issues that have made certain judicial appointments appear more tyrannical than not; and - offered his prescription for improving the judicial appointments process and opened a dialogue.
Now let's look at the root of the problem:
- Judicial appointments (by extension, designation of senior advocates) are in the hands of a few, who have, in some instances, exercised their power in a tyrannical manner - by preferring their favourites/kith and kin over a competent and deserving candidate; - Favouritism and nepotism have become pervasive to the degree that they influence (a) the distribution of work in the bar and (b) opportunities and the timing of such opportunities for deserving candidates
Rijijus' prescription gives the electorate a seat on the table (in the collegium) through a State Rep. This rep can and should speak truth to power and reduce incidences of favouritism and nepotism. The present system gives us, the electorate, no such voice. The executives' role is limited to merely offering administrative and intelligence support - all of which can be shot down by the collegium.
Is the present system riddled with flaws and loopholes that the state can exploit? - yes, no doubt.
Is this reason enough for us to make peace with the status quo and have no dialogue for improvement?
No. We should use dialogue to find a better system.
Coming back to you, sir and your bias -
I don’t mean to be personal, but if you weren’t such an obstinate cynic, you would, by now, have been listing out non-negotiables that should precede any policy improvement on the collegium - to ensure that the tyranny that we are witnessing in certain judicial appointments isn't perpetuated with the State in the mix.
Not sure what made you think of bias and cynicism, which are both personal comments, which you managed to make, despite not wanting to get personal! As I said, I am not getting in this further because there's two very different thought processes. Instead of writing long posts (which I'm perfectly capable of, thank you), I don't want to get in this further, because I respected your thought process, which is different from how I see the things and concluded the dialog on that note. Now I don't know why that triggered you.
Indeed, good to see both sides of a semi-political debate actually engage constructively, and neither side has said the word 'woke' even once! :)
In short, if you don't share Jordan Peterson, Andrew Tate, Elon Musk or other troll / culture war videos and links, the moderator will be Switzerland (without the gold in the banks part). Does that sound like an acceptable deal? :)
https://youtu.be/a_Iz7Iq2t4o
I do, however, agree with Law Minister Rijiju. A state rep in the collegium could balance the scales and reduce favouritism and nepotism.
I respectfully disagree with Lokur's proposition - that the State would, in effect, elect its judge by having its rep on the collegium. Notwithstanding a Section 11 scenario, don't parties (to disputes) select their choice of candidate (on occasion, retirees like him) to arbitrate their disputes? How is Rijiju's prescription any different?
However, I found their interpretation of the NJAC Judgement interesting and delve-worthy. Many minutes went by, pontifying what the Hon'ble Supreme Court meant with its use of the term 'restructure' in the context of the Collegium's MoP. All this happened despite Lokur revealing that he hadn't even read the judgment! He wouldn't have gone down this rabbit hole had he known that this judgment doesn't even use the term 'restructure'.
Irony died a million deaths with these two faulting Law Minister Rijiju's plea for change (with a state rep in the collegium) that is inconsistent with the NJAC Judgment without acknowledging that the collegium isn't even a byproduct of the Constitution of India!!
Let's discuss this.
1. Retd Justice RS Sodhi (to Barkha Dutt's Mojo Story) https://youtu.be/M4uas85m6Fs
2. Padma Vibhushan awardee and Jurist Fali Sam Nariman (to Rajdeep Sardessai) https://youtu.be/TxUEPlXdEy8
First of all, does the individual litigant who is trying to enforce his rights against the state get to choose the judge too? If not, then why should the state, the other party, get to exercise such choice?
Secondly, these judges will also adjudicate disputes in which the state would not be a party. Why should the state get to have a say in selecting such judges?
Thirdly, not all disputes are arbitrable, such as criminal ones.
Para 2 - Does the individual litigant have a say in the existing system? No.
Does a state rep on the collegium result in the state exercising such a choice - No. Why? Nowhere has the state asked for a veto right. Your understanding stands on this flawed and baseless assumption.
Having a state rep on the table offers the state (voice of the people) - to a nominee, which the majority can shoot down - if needed. More importantly, a state rep is, at most, a voice against tyranny (nepotism and favouritism).
You haven't watched the interview or are too proud to challenge your views with critical thinking. Had this not been the case, you would've known that Law Minister Rijiju has also prescribed an expert/ advisory body to support this process. ▮▮▮ take the time to understand what this entails.
Para 3 - criminal cases aren't arbitrable. This rather known fact has no relevance or application to the question at hand and the arbitration reference made by me.
As for saying that the lack of a veto power means that the state doesn't have a say, that's just selectively convenient argument. Just by being in that committee, the representative gets to have a 'say'. It is part of a slippery slope from there to influence the other members by hook or crook, as we have seen political parties do time and again.
As for expert parties suggested by Rijiju, we have all seen how this government 'appoints' experts to suit their agenda. TBH, other governments have done the same earlier.
That criminal disputes aren't arbitrable but adjudicated nonetheless means that the parties there do not get to have any say in selection of the judge. In this case too the judges selected will be adjudicating non-arbitrable disputes too, so there's not even any questionable analogy to suggest that the parties of those cases should have any say in the selection of the judge. One would have thought it obvious, but clearly your brand of critical thinking failed to spot it.
Let me break this down for you -
Point 1 - There's a process behind appointing a judge and an arbitrator;
Point 2 - nomination of a candidate from a talent pool and consensus (of relevant stakeholders) are hallmarks of a transparent process;
Point 3 - judicial appointments since the advent of the collegium have, inter alia, long been tainted with accusations of nepotism and favouritism (in relation to some candidates);
Point 4 - there are accusations of nepotism and favouritism even in relation to selecting senior counsels;
Point 5 - as a result of points 3 and 4, the legal services market is pretty much at the mercy of a certain cabal - when selecting counsel/ senior counsel in sensitive and high stake cases (which explains why there's a disproportionate share/ distribution of work among young lawyers);
Point 6 - it has been over half a decade, and no meaningful reforms have been introduced to bust this cabal (dare I call it a mafia - given what sway some of them have in corridors of power);
Point 7 - in a democracy, it is the duty of our elected leader/ minster to hear all voices and work towards legislating change;
Point 8 - all that Law Minister Rijiju did was:
-echo our voices against nepotism and favouritism; and - offer his prescription against such tyranny - through open dialogue;
Point 9 - Law Minister Rijiju's prescription broadly prescribes two enhancements to the nomination process-
- a seat on the table for a democratically elected representative of the People of India (i.e. the Law Minister/ any other appointed representative of the State); and
- a nomination process that is backed by experts (note - experts typically offer an advisory role, and the Law Minister hasn't suggested anything otherwise in his prescription)
Point 10 - let's now go over the good that will come from all this -
a. the people of India have a voice and a seat on the table through their elected representative, and this voice can and should serve as a check and balance against the tyranny that has crept into the judicial appointments process (i.e. lesser or no nepotism/favouritism); and
b. no more cleaning of dirty linen in public - the present situation is a disgrace with both stakeholders adopting subterfuge to put forth their points of view (the deliberations of the proposed, upgraded collegium can be kept private without diminishing the reputations of self-esteem of rejectees)
Point 11. Paras 2, 3 and 4 are loaded with your mistrust towards the present dispensation and biases. But here’s the thing, sir -
Your rebuttal is batting for the status quo. Law Minister Rijiju is batting for dialogue - which is where all stakeholders get to identify loopholes and formulate a cohesive, transparent, inclusive and reliable policy.
✌️
Past nominations have been suboptimal, with favoritism and nepotism creeping into the selection process. A fact that even anti-Modi voters won't deny.
A state rep (without veto) and a collegium supported by a panel of experts and eminent persons can/ should -
1. better ensure that the state exercises its vote and speaks with more responsibility and good information; and
2. better ensure a reduction in instances of favoritism and nepotism in the appointment process.
Can an improved system be beaten?
Ans Yes. Because there isn't such a thing as a flawless system anywhere in the world.
Should the status quo continue simply because a step in the right direction isn't a "guarantee" against tyranny?
Ans No.
Bias demolishes one's patience and space for dialogue. It has evidently inhibited your ability even to appreciate that Law Minister Rijiju has so far:
- delineated the issues that have made certain judicial appointments appear more tyrannical than not; and
- offered his prescription for improving the judicial appointments process and opened a dialogue.
Now let's look at the root of the problem:
- Judicial appointments (by extension, designation of senior advocates) are in the hands of a few, who have, in some instances, exercised their power in a tyrannical manner - by preferring their favourites/kith and kin over a competent and deserving candidate;
- Favouritism and nepotism have become pervasive to the degree that they influence (a) the distribution of work in the bar and (b) opportunities and the timing of such opportunities for deserving candidates
Rijijus' prescription gives the electorate a seat on the table (in the collegium) through a State Rep. This rep can and should speak truth to power and reduce incidences of favouritism and nepotism. The present system gives us, the electorate, no such voice. The executives' role is limited to merely offering administrative and intelligence support - all of which can be shot down by the collegium.
Is the present system riddled with flaws and loopholes that the state can exploit? - yes, no doubt.
Is this reason enough for us to make peace with the status quo and have no dialogue for improvement?
No. We should use dialogue to find a better system.
Coming back to you, sir and your bias -
I don’t mean to be personal, but if you weren’t such an obstinate cynic, you would, by now, have been listing out non-negotiables that should precede any policy improvement on the collegium - to ensure that the tyranny that we are witnessing in certain judicial appointments isn't perpetuated with the State in the mix.
Moderator - ?
In short, if you don't share Jordan Peterson, Andrew Tate, Elon Musk or other troll / culture war videos and links, the moderator will be Switzerland (without the gold in the banks part). Does that sound like an acceptable deal? :)