Such a more important piece of news but yet everybody is focussed on..

...rants of some ex-NLU girl
...incompetency of hallus and gallus in organising CLAT
...second string lawyers finally getting their dream "partnership" with two psychos who abused their mother
...some ego issue between LI and BCI which is being presented as a fight for 'transparency'

Maine toh pehle hi bola tha, Rohatgi can't argue this matter successfully, roughing up J.Khehar is falling into a trap which will turn the hearings into a superficial slanging match with no real discussion of relevant facts or law or legal authority.

To win this case, the Govt needs lawyers who can make the judges back off and listen with the weight of constitutional authority and the gravitas of their arguments. The arguments need to be presented in a more scholarly and elaborate fashion. Every submission must be buttressed by citation, precedents, legal and jurisprudential reasoning etc. The arguments need to go deep into what a constitution is, its political origins, how constitutional lacunae are dealt with, and into how the Indian Constitution as drafted was far from perfect. Also if the Govt wants to win, it must present facts concerning the problematic functioning of the collegium on affidavit and not during mere oral arguments. Instances and trends of corruption,nepotism, lack of transparency, etc in the collegium working must be placed on affidavit. Maybe the Govt can place affidavits by former collegium members and former judges like Ruma Pal, Katju etc. The facts cannot be pushed under the carpet if the govt wants to win. And it must win, otherwise this govt will lose all credibility. At the same time, the Govt must start a process of discourse into how the NJAC can be improved. I don't agree with the NJAC as conceptualised even though I am strongly opposed to continuation of the collegium method.

Rohatgi does not have the gravitas of a constitutional lawyer. He is not a scholar. He deals in facts, and in making loud and simplistic points of law. His whole argument style is simplifying facts and law into pithy statements. Just the opposite is needed here. Every small and even self-evident legal point needs to be blown up into a legal thesis supported by authority and more authority.

A good strategy would have been to file detailed written submissions with all this legal authority on record even before 8 June so that the Judges could not derail the arguments into a perfunctory slanging match. In a slanging match the govt is at a disadvantage unless its willing to go for the jugular, which it cannot do as it will be criticised.

Plus the govt has already messed up in its inadequate framing of the statement of reasons and objectives for the constitutional amendment bill/ act.

As expected the hearing is degenerating into a farce. Apparently the Bench has asked the Centre to give a list of all bad appointments of judges made by the collegium during last two decades.

So now who will bell the cat?

Maybe the Bench should open the closed envelope in the Prashant Bhushan contempt case to read the names of some allegedly corrupt Chief Justices.

I have read very little legal research and analysis on the judicial appointment issue. But just found a very interesting note by a third year student Akhil Deo at the Hidayatullah National Law University

Here's the link, he makes some interesting points.

indconlawphil.wordpress.com/2015/06/09/guest-post-the-njac-and-an-unconventional-constitutional-convention/

Why are more people not researching and publishing on this, before the NJAC case is decided.

Also in the month that it had before 8 June, the Govt should have launched a PR blitzkrieg with editorials, comments, panel discussions, and such like to create a favorable public discourse. But there was complete silence.

Has the Bench passed a written order directing the Govt to file a list of all bad appointments of judges made by the collegium during last two decades? Or was it an oral observation?

The Govt reply should be that the Supreme Court should disclose all complaints against Judges received by the Supreme Court or any High Court in the last two decades and should also disclose what if any action was taken pursuant to the complaint. This should include all complaints sent by any means of communication including email.

The Govt should further ask that the Supreme Court should direct the office of the President, the Prime Minister the Law Minister, all Chief Ministers etc to disclose all complaints against Judges received in the last two decades and should also disclose what if any action was taken pursuant to the complaint. This should also include all complaints sent by any means of communication including email.

Since this Supreme Court Bench wants to know of all bad appointments of judges made by the collegium during last two decades, it should also disclose in how many instances of complaints against judges did the Supreme Court or the High Courts silence the complainant and the reporting media by charging/ punishing them for contempt of court instead of inquiring into the complaints against the judge under taint so that the truth defence against contempt could actually be used.

One of the grossest cases was when Midday journalists M K Tayal, Editor (City), S K Akhtar, the then Publisher, Vitusha Oberoi, Resident Editor, and Irfan Khan, Cartoonist, were held guilty of Contempt by a Division Bench of the Delhi High Court for reporting on complaints of corruption against former Chief Justice Y K Sabharwal.

See zeenews.india.com/home/sabharwal-case-midday-journalists-held-guilty-of-contempt_394277.html

In 2009 Fali Nariman (who is now defending the collegium) criticized the collegium method and said this:

m.thehindu.com/news/national/collegium-system-not-working-properly-jurists/article64365.ece/

"Delivering the keynote address, on appointment of judges, senior lawyer Fali S. Nariman said he regretted winning the Second Judges Case, through which the Supreme Court took upon itself the task of clearing appointments to the higher judiciary.

(In 1993, the court by a majority of 7- 2, held that henceforth the CJI must take into account the views of senior colleagues for formation of collegiate opinion in appointment of judges. This system is being followed till now in the selection of judges.)

Mr. Nariman said the recent instances of allegations against sitting judges, and the widespread belief that the collegium did not always recommend the best names to the Bench showed that the system had not lived up to expectations. "Today, for reasons I need not expand - I can only express my extreme anguish at the current state of ground realities in the matter of appointment of judges."

Describing the collegium's role as an extra-curricular activity imposed upon the five judges, he said recommending appointments to the highest court had not been done with the care and caution it deserved. "There is too much ad hocism and no established process of selection for recommendation."

In the Justice Dinakaran case, Mr. Nariman said, the lawyers were not seeking a "confrontation" with the judiciary. The idea was to bring to the judges' notice something they might not have noticed. Setting up the National Judicial Commission would help expedite appointments to the higher judiciary leading to speeding up of justice."

Fali Nariman made these statements in 2009 in a keynote address. He then favored a National Judicial Commission for judicial appointments.

A more detailed version of Fali Nariman's remarks on the collegium system which he made in 2009.

"Choosing judges
Need for greater transparency
by Fali S. Nariman

IN 1981, the Supreme Court said in S.P. Gupta’s Case (also known as the First Judges’ Case), by a narrow majority of 4:3, that the Chief Justice of India’s opinion in the judges’ appointment was not constitutionally binding on the Centre. The majority of the justices consisted of Justices Bhagwati, Fazal Ali, Desai and Venkataramiah, and the minority consisted of Justices Gupta, Tulzapurkar and Pathak.

The majority decision may or may not have been correct in constitutional law (it probably was); but it was definitely not in accordance with constitutional convention. And it proved to be a disaster for “judicial independence” because it enabled governments to “manipulate” appointments. As for instance when in the case of some recommendations of the executive, the CJI stood firm, the Centre attempted to persuade the High Court Chief Justice concerned (in the case of appointment of a judge to a High Court).

When Justice P.N. Bhagwati, who delivered the majority judgment in the First Judges’ Case (1981) became the CJI in July 1985, he was administered by the government some of the bitter medicine that he himself had prescribed when presiding over the Bench of seven justices in the First Judges’ Case. Justice Bhagwati (who was CJI for 18 months) made recommendations of persons who deserved to be appointed as judges. But at the end of his tenure as CJI, Bhagwati chafed quite a bit at the government’s refusal to accept the names proposed by him!

It was all this accumulated experience — as a result of the majority judgment in the First Judges’ Case — that prompted the now new faces on India’s Supreme Court to take a fresh look at the problem. The new faces were: Justices S. Ratnavel Pandian, A. M. Ahmadi, Kuldip Singh, J. S. Verma, M. M. Punchhi, Yogeshwar Dayal, G. N. Ray, Dr A. S. Anand and S. P. Bharucha. They came to the conclusion that it was time to review the correctness of the ratio of the majority decision in the First Judges’ Case.

This is where I come in. I had led the main argument on behalf of the petitioner, Supreme Court Advocate-on-Record Association in the
Second Judges’ Case and we had succeeded. But the fallout was
not as we had expected.

What the majority in the Second Judges’ Case (1993) prescribed (7:2) was not the status quo ante but it was — as the Americans would call it — an entirely new “ball game”!

The CJI’s primacy on which the whole edifice of an independent judiciary under our Constitution rested was a doctrine that had been sorely misused during the internal Emergency (1975-77) during which period Chief Justice A.N. Ray had got transferred judges from one high court to another not on the basis of the exigencies of work but solely because these judges had decided certain important cases which had political overtones against the Centre or the relevant state government. It was in this background that the majority in the Second Judges’ Case said that they would not endorse the doctrine of the CJI’s primacy.

Justice Verma, (who, in 1997, succeeded Justice Ahmadi as CJI) said (in the Second Judges’ Case) that the reason given by the majority in the First Judges’ case could not be supported, and was not in accordance with existing practice, and that the doctrine of primacy would henceforth mean the CJI’s opinion after taking into account the views of his senior colleagues required to be consulted by him for formation of a collegiate opinion: the opinion of a collectively of judges was to be preferred to the opinion of the primus inter pares of that body viz. the CJI.

Subject to introducing the idea of a collegiums, the judges (7:2 in the Second Judges’ Case) restored the pre-1981 position in matters relating to the judges’ appointment in the higher judiciary with one caveat: if the government did not accept the collegium’s recommendation, it would be presumed that the government had acted without bonafides. In the Second Judges’ Case, the majority held that the court’s prior decision of 1981 was erroneous and it was expressly overruled.

The truth is that although good competent honest men and women have been appointed to the superior judiciary under this judge-evolved procedure, many fit and competent persons have been passed over for unknown reasons simply because there is no institutionalised system for making recommendations.

Thus, when Justice Punchhi became the CJI in January 1998 and suggested that a list of five named persons be appointed in vacancies to the highest court (all strictly in accordance with the methodology laid down in the Second Judges’ Case), the government, having genuine reasons to doubt the suitability of one or two of the names in that list, dragged its feet.

When the government suggested to the CJI that some of the names could be accepted but not all, the CJI said “no”; he was firm and there were apprehensions in the minds of the executive of possible “contempt” proceedings being initiated suo motu against the executive if the CJI’s en bloc proposal was not accepted!

Ultimately, to avoid a possible ugly situation, a Presidential Reference was filed by the government for the advisory opinion of the Supreme Court for “clarification” of some dicta in the Second Judges’ Case. In this Reference, only a few ‘creases’ were ironed out; and the collegiate was enlarged (by judicial decree) from three to five of the seniormost justices on the highest court on the (somewhat dubious) principle that there was greater safety in larger numbers!

As for the suggestion made in the Third Judges’ Case (1998), which has been implemented, the criticism is that the system of recommendation for appointments by a collegium of five seniormost judges (like that of three went before) has also not been institutionalised. No mechanism has been prescribed (by the collegium itself) nor any criteria evolved as to which amongst the high court judges, all aspirants to a place in the Supreme Court should be recommended.

As a general rule, some, or perhaps many, of the recommendations of this five-member collegium have been “good”, but some have been “not-so-good” and a few positively “bad”: with the constantly changing combinations in the collegium (all Supreme Court judges having to compulsory retire at 65 years).

Continuation of Fali Nariman's remarks in 2009

"So nothing has worked well. Neither the system of appointments during 1981-92 (where the government had the veto) nor even the post-1993 system of appointments (where three and later five seniormost judges of the court) had the right to recommend judges for appointment.

But is the National Judicial Commission the right answer? Will there not simply be more confusion in even greater numbers? Perhaps there would. The answer to all this lies not in the number of persons who select nor in the range of persons entitled to select. There must be a greater transparency in the method and procedure of judges’ appointment.

I do not imply that there should be publicity. Once the method and procedure is known, the confabulations within the judiciary must be left to the justices without the intruding eyes of members of the public or the media. The problem today is that not much care is taken by the collegium in recommending judges for appointment to the Supreme Court simply because they are otherwise too busy in deciding cases that come before them.

Today, for reasons I need not expand upon, I can only express my extreme anguish at the current state of ground realities. The extra-curricular activity (imposed upon five judges by a judgement of the court itself) that of recommending appointments to the highest court has not been conducted with the care and caution that it had deserved. There is too much ad hocism and no established process of selection for recommendation.

This article is excerpted from the writer’s Annual Dr Kailash Nath Katju Memorial Lecture delivered at Teen Murthi House, New Delhi, on December 11, 2009"

www.tribuneindia.com/2009/20091212/edit.htm#4

Here's a link to what Judge A P Shah had to say in his criticism of the collegium system. The Govt should get him also to file an affidavit in the NJAC matter.

timesofindia.indiatimes.com/india/Collegium-system-failed-Law-panel-chief/articleshow/39013084.cms?from=mdr

extracts

In an interview to a TV channel, Justice Shah said: "Justice Katju's revelations cannot be undermined, but I have reservations over the manner in which it has been done and about its timing." The collegium system is so opaque that even if someone wants to speak out, he cannot do it having come through the same system, he said.

"The collegium system has completely failed, judges are appointed on unknown criteria," Justice Shah said calling the apex court system of appointing judges as a cabal or a club lacking transparency. "It has failed as favourites get appointed and the rest are left out," said the former chief justice of Delhi High Court.

and

Justice Shah pointed out how the collegium had gone ahead to appoint a judge at the age of 60 years when the criteria laid down clearly says any appointment to higher judiciary has to be below the age of 55.

"I remember once lists were forwarded by the Punjab and Haryana High Court and Madras High Court. The apex court collegium completely scrapped the two lists without assigning any reason," Justice Shah recounted.

In this blog post the author refers to Nariman's book Before Memory Fades and what Fali wrote there on the collegium issue.

lawandotherthings.blogspot.in/2013/03/rethinking-collegium-model.html

I quote from the blog

"Practitioners before the Supreme Court have raised serious questions about the efficacy of the collegium system, and whether a judge centric model of appointment is constitutionally warranted and justifiable. For instance, Fali S. Nariman in his autobiography candidly characterizes the second judge’s case as “A case I won – But which I would prefer to have lost” (Before Memory Fades, Fali S. Nariman, Chapter 16, p.387 – 406). He explains that the second judge’s case in an attempt to restore the position before the first judge’s case, went far beyond it, and virtually re-wrote Article 124. In doing so, the second judge’s case neglected any institutional measure that could have lent accountability and openness to the envisaged collegium model. He further adds that the third judge’s case by prescribing “effective consultation” did little for remedying the lack of any institutional check, and further entrenched judicial primary in the appointment procedure."

In his book Before Memory Fades, in Chapter 16 titled - A case I won - But which I would prefer to have lost, Nariman writes

- that the closed-circuit network of five judges should be disbanded

- that he has lived to regret the Second Judges Case

- That he doesn't see what is so special about the first five judges of the Supreme Court

- That the Collegium headed by Chief Justice Verma used to consult senior advocates including Fali Nariman, he even recorded their views on the file.

Parts of Chapter 16 are available at books.google.co.in/.../


-

In an interview published in Outlook Magazine on September 8, 2014, Fali Nariman stated the following on the collegium issue.

www.outlookindia.com/article/venkatachaliah-bill-was-perfect-why-did-the-bjp-depart-from-it/291810

I quote extracts:

"Are you in favour of a National Judicial Commission?

I am fervently supportive of there being a bill that talks about the National Judicial Commission, but not a commission where the power to appoint judges is with non-judges. And this question will have to be ultimately decided much later after the President assents to the bill. The BJP government—when it was in power in 1998-2003—had itself appointed a commission to review the Constitution, and one of the questions which was being reviewed by Justice M.N. Ven­kata­chaliah, who was chairman of the commission, was whether this present system of appointment of judges by a collegium ought to be changed. And they came to the view that it ought to be changed. And they actually devised a bill, the format was given and that format pro­vided for a National Judicial Com­mission consisting of three seniormost judges, the chief justice and two others, the law minister and one eminent person from amongst members of the public to be appointed by the President in consultation with the Chief Justice of India. Not the minister. That is to say, no political slant. In support of that view, the BJP government itself introduced the 98th Constitution Amendment Bill in Par­liament in 2003, and that is the ideal bill. It only lapsed because elections were called. My point was that there is no explanation in the proceedings in Parliament or anywhere else by the law minister or any other minister as to why they departed from this bill. It was a perfectly correct bill."

AND

"You won the (1993) Second Judges case where power was restored to the judiciary to appoint their own. Yet in your book, Before Memory Fades, you write it was a case you’d prefer to have lost. Yet here you are again fighting for the judiciary’s independence....

The situation has changed because the collegium system did not work as we expected. There were deficiencies in the judiciary also. If the collegium had maintained minutes, if all five judges had recorded everything and it was done in a transparent manner, it would have been perfectly alright. But the collegium was like a curtain drawn on the proceedings with an exchange of your man, my man. In the current bill that’s passed, if any two out of six dissent, which means if all three judges say appoint Mr X, two men—the law minister and an eminent man—say no, it means no. So control of the judiciary is no longer with the judiciary. Appointment of the judges is no longer with the judges. Which for India is a bad thing. In England, it was perfectly okay. They have a different ethos."

AND

"Do you think the political class has ganged up against the judiciary?

Yes. They have. I admit there have been some problems, and mistakes too. There were appointees who should not have been appointed. There were others who should have been appointed but were not. The question is this is a system now to be introduced for all time. For all time means by a constitutional amendment. We can’t leave it unchallenged or at least not question it. I do question it, whatever my friend Mr Katju says."

AND

"Has no good come out of Katju’s criticism? After all, you too accept there are bad pennies?

We have said that a long time ago. I was the one to have said we should change the system. But we can’t swing like a pendulum. Of course, you have to change it. I am not for the collegium system."