The Supreme Court Advocate on Record Association (SCAORA) Friday opposed the government’s plea for referring to a larger bench the challenge to the NJAC contending that the issue before the court was whether it was in conformity with the basic structure of the constitution or not.
The SCAORA told the court that both, the 1993 “second judges” case which gave primacy to judiciary in the judicial appointment and the subsequent 1998 unanimous opinion reaffirming it, stood knocked out by the constitutional amendment act, 2014 and the National Judicial Appointment Commission Act, 2014.
The court was told that issue before the court was not whether the primacy of the judiciary in judicial appointment was embedded in the NJAC but whether the appointment of judges through NJAC upheld the independence of judiciary which was the part of the basic structure of the constitution.
Telling this to the constitution bench of Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel, senior counsel Fali Nariman, appearing for SCAORA, told the court that the question to be examined is whether NJAC mechanism violated the basic structure of the constitution and the same can be done by the five judges bench instread of referring it to nine or 11 judge bench.
Reading the amended article 124A of the constitution, Nariman said that entire basis of primacy of judiciary or that of the collegium headed by the chief justice of India as given by the 1993 second judges judgment has been taken away by 2014 amendment to the constitution.
Trying to the show the court what the government was upto, he said that even if the case is referred to a 11-judge bench and they uphold the 1993 judgment giving primacy to judiciary in judicial appointmen, it would not affect the government as foundation for the primacy of judiciary had been erased from the constitution.
“Even if 11 judges upholds the nine judges (1993 second judges case), they (government) will come and say that the ‘consultation’ with the chief justice has gone under the new scheme”, Nariman told the court adding that government was keeping another string in its bow to spring it at that stage.
“They have an additional string in their bow and that additional string in their bow should have come first,” Nariman told the court.
At this Justice Goel said that the “simple issue is that does the constitution amendment and NJAC violates the basic structure of the constitution and we have to test the new scheme on the question of independence of judiciary and basic structure of the constitution”.
Responding to a question from Justice Kurian on the functioning of the collegium system, Nariman said: “There may be lot to say as criticism (of the collegium system) but here we are not in a seminar. We are debating a constitutional law.”
Earlier senior counsel Harish Salve appearing for Haryana urged the court that in order to give weight to the entire consideration of the issue, the matter should be referred to larger bench of nine or 11 judges.
He said that the issue involved - the appointment of judges - was pivotal to the democracy and for an authoritative pronouncement it should be referred to larger bench.
Appearing as an intervener, senior counsel TR Andhyarujina wondered could it ever be a case that in order to uphold the independence of judiciary, the appointment of judgers should rest with the judiciary. He said that this view finds no support either in the constitution or in any jurisdiction in any other countries.
“If appointment of judges by the judges is a part of the basic structure, then 1993 judgment needs to be relooked,” he said adding that jurists world over has described this as an appropriation of judicial powers by the judiciary.
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youre a lawyer. so is nearly everybody else reading this article. take it easy.
The NJAC Act has been challenged. The petitioners and the Bench have relied upon the basic structure argument to argue that the NJAC Act is unconstitutional. This argument relies upon the 1993 and 1998 judgments.
The Parliament reflecting the will of the People has passed the NJAC Act and it must be presumed to be constitutional. It can be therefore be presumed that Parliament believed that the NJAC Act did not violate the basic structure.
If the challenge to its constitutionality rests upon the basic structure doctrine as applied in the 1993 and 1998 decisions, then these decisions must be re-examined especially when the AG has argued that the Government of the day is of the view that these decisions were wrong. (This view is widely shared.)
The only way to put an end to this dispute is for the Bench to reexamine the basic structure doctrine as it applies to judicial independence and judicial appointments afresh.
In order for such an examination, both the 1993 and 1996 decisions need to be re-examined. This can only be done by an 11 Judge Bench as the current 5 Judge Bench would be bound by these decisions.
The reluctance of the Bench and of Nariman to have this important matter fully examined reeks of malafides and an attempt to avoid a judicial re-determination through trickery.
There is a coterie in control of the judiciary including 5 star lawyers who are unwilling to let go of their usurped power. This clique includes the prominent lawyer-politicians.
Anyone who has observed the functioning of the Indian judiciary at close quarters over the last 25-30 years will attest to the rot that has set in due in no small part to the collegium system.
However, I am not sure that the NJAC is the best solution. Perhaps Parliament should be given the job of approving appointments to the higher judiciary.
Here's a response to lawandotherthings.blogspot.in/2015/05/njac-hearing-in-supreme-court-merits-of.html " NJAC hearing in Supreme Court: Merits of AG's plea for reference to a larger Bench"
On the issue of whether Rohatgi's request for an 11 Judge Bench was belated –
First the post itself notes that it took a few hearings before it became clear closer to April 28 that the Petitioners were relying upon the 1993 and 1998 decisions & on the basic structure argument as applied therein. The Bench also made its inclination towards going down that road clear.
Therefore Rohatgi's plea for an 11 Judge Bench at this time was not belated but only prompted by the direction the matter was taking.
Second, this issue of judicial appointments is much too important for any argument of a 3 week delay etc. to prevail etc. The Supreme Court must realise that it is not "higher" than either the executive or the legislature and that all three branches are equal partners in governance and that the constitutional scheme requires all three to play a role in maintaining checks and balances on each other and in ensuring accountability.
The Supreme Court must realise that a final determination of this issue will require all three branches to be carried along and that all three branches/ stakeholders will need to "buy into" the legitimacy of the solution. Today the Government of the day (i.e., the executive) has spoken through the AG and the 16th Parliament has spoken through its act of creating the NJAC that they are of the view that the NJAC amendments are constitutional and in public interest and do not fall foul of the basic structure doctrine. The current executive and the 16th Parliament are therefore clearly of the view that the 1993 and 1998 decisions were wrong in how the basic structure doctrine was applied and that this resulted in an unconstitutional usurpation of power by Supreme Court Judges acting as the collegium. The Supreme Court cannot ignore these two branches of government and refuse to reconsider the basic structure doctrine as applied in the earlier Judges cases.
Fali Nariman and some members of the Bench are being dishonest in their circular opposition to an 11 judge Bench. Nariman is only diminishing in stature by the position he is espousing.
The need for an 11 Judge Bench is clear from the following statement in this post:
"With the Bench refusing to refrain from referring to the judgments in Second and Third Judges cases, the AG perhaps had no option but to persist with his reference plea."
The issue of when the AG became convinced about the need for an 11 Judge Bench is irrelevant.
The issue of the correctness or otherwise of the basic structure doctrine on judicial independence" as applied in the 1993 and 1998 decisions is squarely before the Court because the creation of the NJAC itself raises this as an issue. The Supreme Court therefore cannot refuse to consider this issue and consequently cannot refuse to re-look at the 1993 and 1998 decisions.
The post also misleadingly states:
"The plea for referring the case to an 11-Judge Bench, on the basis of arguments of the respondents' counsel, appears to be based more on rhetoric, and the need for an "authoritative pronouncement" on the issue."
As stated above, this issue is certainly not rhetorical and of course it is required for an authoritative pronouncement on this issue which goes to the root of Indian democracy.
The following statement in this post only exposes the bias and agenda of the author and that this statement is wrong is clear from what has been stated herein earlier and also in the first half of the post itself.
"Clearly, there was nothing to prevent the counsel from making such a plea vociferously at the beginning of the hearing. But for reasons unknown, they didn't."
Further of course the Bench is hesitant to refer the case to an 11 Judge Bench and the reason is not some assumed slight or waste of precious court time, but is a dishonest attempt to prevent adjudication of the issue raised. (Note that the Judges are interested parties in this matter). This position of the current 5 Judge bench does not reflect well on them as this is possibly the most important case they will ever decide in their judicial careers and the future of the entire nation is at stake. The hesitation is difficult to understand because if these judges are so convinced that the basic structure doctrine was correctly applied in the 1993 and 1998 cases then why be afraid that an 11 judge bench might disagree with that. Surely, the plea of the government for an 11 judge Bench is proper under the circumstances.
The post goes on to state:
"With the sole exception of Justice Kurian Joseph, the Bench believes that though the judgment may be useful to understand the present challenge, it is not binding."
In response, I point out that even a first year law student knows that as a matter of law, the 1998 nine judge bench decision is binding on a 5 judge bench on the same issue. Therefore irrespective of whether or not the author of this post appreciates this legal position or not and irrespective of whatever the four judges might or might not convey during oral (and unrecorded) arguments in court, the law will require that the 5 judge bench defer to the nine judge bench decision. There is no scope for any ambiguity on this position.
All in all, V.Venkatesan has attempted a necessarily weak defence of an indefensible position.
The Supreme Court must refer the matter to an 11 judge Bench at the earliest.
Seema Sapra
See archive.indianexpress.com/news/apex-court-junks-pil-to-revisit-collegium-system/1056092/0
Apex court junks PIL to revisit collegium systemExpress News Service : New Delhi, Tue Jan 08 2013, 02:57 hr
"The Supreme Court on Monday dismissed a PIL, which challenged the collegium system of appointment of judges in the apex court as well as the high courts, on the ground that it was not maintainable. It had succeeded in getting notices issued to the Centre and the Attorney General of India on the last date.
A three-judge Bench led by Chief Justice of India Altamas Kabir refused to hear the PIL filed by Suraz India Trust any further after noting that the petitioner trust had no locus to seek indulgence of the court and hence it was not maintainable.
"What is your (petitioner's) locus in the matter? We must first be satisfied about your locus. If the petition is not maintainable, why should we hear it? We will consider this issue only when you can satisfy us on the locus," observed the court.
As the Bench questioned the locus standi of the Rajasthan-based trust, senior advocate A K Ganguly, amicus curiae in the matter, sought to convince the court that the question of locus had already been gone into by another Bench and that it was the issue and not the locus of the petitioner that should be given the primacy.
The Bench however rejected his argument and dismissed the PIL on the ground of not being maintainable.
Earlier, a Bench of Justices Deepak Verma (since retired) and B S Chauhan had, in an order passed on April 4 last year, referred the petition to the CJI for setting up a larger Bench as "it involved complicated legal issues".
Taking up the matter on November 9 last, the CJI's Bench had issued notices to the Union of India and Attorney General G E Vahanvati on the petition that has sought a review of the 1993 judgment by nine-judge Bench in Advocate-on-Record Association versus Union of India case.
With this notice, possibility of the apex court re-visiting the issue more than 19 years after a nine-judge Bench declared the primacy of the collegium in the appointment of judges in the Supreme Court and high courts, had looked up."
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