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Legal legend Upendra Baxi not optimistic about chances of SC fixing the collegium

At a discussion on the Supreme Court’s recent judgment quashing the 99th Amendment Act and the NJAC Act, eminent academic, Professor Upendra Baxi, defended the judgment, but expected nothing much to come out of the ongoing hearing on reforming the collegium.

Baxi was one of the three main speakers at the discussion organised at Alliance Francaise, Delhi, by the National Law University Delhi’s Public Law and Policy Discussion Group with Caravan Conversations. The other two speakers were advocate, Madhavi Divan and senior advocate, Raju Ramachandran.

Divan and Ramachandran were critical of the judgment. The discussion was moderated by NLU’s well-known faculty member, Anup Surendranath.

Even as the speakers explained their stand on the judgment, the ongoing hearing in the Supreme Court which began on 3 November was the subject of animated conversation among the speakers and audience. Questions were raised, for instance, about the method adopted by the Constitution Bench, to elicit responses from the counsel on the first day. Some advocates among the audience wondered whether Mathews J Nedumpara, who raised embarrassing questions during the hearing about the competence of the bench to reform the collegium, was not, after all, correct, even though the manner of his intervention left much to be desired.

It was unusual for the bench to treat the court like the Parliament, and seek the views of senior counsel on reforming the collegium; Why only the senior counsel to begin with, asked a lawyer. Another wondered whether a serious question like reforming the mechanism to select future Judges could be decided by five Judges and a couple of senior advocates in the Supreme Court in this manner, with two of them being asked to compile the proposals within a day, so as to help the bench to finalise them on 5 November.

A senior advocate revealed that he declined the request from a party to intervene in the matter, as he disagreed with the very process adopted by the bench to elicit views from the counsel. Ultimately, the request was accepted by another senior counsel who was willing to help the bench to make cosmetic changes to the present collegium.

Although the speakers at the discussion reiterated their known positions on the issue, it was the animated conversation which followed their presentation of views that is of significance. In a reply to a pointed query from Ramachandran whether Baxi and Surendranath agreed that the collegium system was suffering from “uncle judges syndrome” (a euphemism to describe the “you favour my relative advocate and I favour yours as Judge so as to make a killing), Baxi said the answer to this malaise is enlarging to size of the collegium substantially, say, to 50 members, with a majority of Judges, including the Chief Justices of High courts, so that the criticism that a small club of Apex Court Judges is protecting the interests of each other in the club in the appointment process loses its validity.

Ramachandran, however, argued that the judiciary, wherever it finds itself in a majority, would always behave like a class.

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