Here are my further comments on the hearing going on in the Supreme Court of India.
11 June 2015
I am really disappointed at the low quality of both the arguments and the hearing in this case. It really reflects on the low quality of our Supreme Court Judges, our so-called senior advocates and our law officers. This is what you get when you have a small nepotistic club operating in a system of unearned privileges and influence. Merit and ability are no longer relevant.
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.
10 June 2015
Though there are no written rules to this effect, in practice appointment of judges to the Supreme Court of India follow a quota system so that judges from all High Courts all over the country get appointed to the Supreme Court. I have often heard lawyers say that the Bombay High Court quota or the Delhi High Court quota for judges in the Supreme Court is full or has a vacancy. I refer to these High Courts only as an example.
I have sometimes wondered if a Judge from every High Court (say Orissa or Mashya Pradesh or Sikkim) has the relevant experience to be a Supreme Court Judge.
In most High Courts the kinds of cases are quite different from those that reach the Delhi or the Bombay High Courts. Cases involving the federal government, or national security, or defence, or very high value corruption, or complicated commercial disputes, or securities matters, etc do not go before several State High Courts.
Should there be a geographic quota system for judicial appointments to the Supreme Court of India?
____________
________________________________
11 June 2015
The delivery of justice through courts in a democracy is a public good and citizens are the consumers of this public good, or consumers of justice.
During the NJAC hearing today, AG Rohatgi used the term "consumers of justice" and was curtly told by the Bench that he should rephrase it as "seekers of justice".
I find this reflects an autocratic, non-democratic attitude of our judges in India who start to see themselves as above everyone else and above all institutions.
A google search of the term "consumers of justice" throws up book and article titles with this phrase and several books and scholarly articles which use this term. Why then did our Supreme Court judges find this term inappropriate.
Judges are not godlike and citizens are not "seekers" but are consumers of justice with a right to the delivery of high quality, efficient and fair justice.
Our judges need to step down from their high perches and learn to be humble. A judge is after all a public servant providing a public service.
This remark by the Bench today shows up how some judges of the higher judiciary in India has acquired a larger than required sense of self-importance, power, arrogance and invincibility.
During the NJAC hearing today, AG Rohatgi used the term "consumers of justice" and was curtly told by the Bench that he should rephrase it as "seekers of justice".
I find this reflects an autocratic, non-democratic attitude of our judges in India who start to see themselves as above everyone else and above all institutions.
A google search of the term "consumers of justice" throws up book and article titles with this phrase and several books and scholarly articles which use this term. Why then did our Supreme Court judges find this term inappropriate.
Judges are not godlike and citizens are not "seekers" but are consumers of justice with a right to the delivery of high quality, efficient and fair justice.
Our judges need to step down from their high perches and learn to be humble. A judge is after all a public servant providing a public service.
This remark by the Bench today shows up how some judges of the higher judiciary in India has acquired a larger than required sense of self-importance, power, arrogance and invincibility.
____________________
"In an interview to India Today Television, the minister said the independence of the judiciary begins after judges are chosen. It’s not connected with how they are chosen."
Law Minister Sadanand Gowda is repeating here what AG Mukul Rohatgi has earlier stated in Court.
Once again, this argument is badly worded, counter-productive, even legally untenable and the wrong way of framing this issue.
The criteria and mechanism for judicial appointments do form a part of the larger set of norms that promote and maintain judicial independence. So this argument as framed is wrong.
But judicial independence does not translate into a norm whereby judges appoint judges.
Rather the Govt should be arguing that the NJAC is an attempt to introduce integrity, transparency, accountability, participation, and substantive normative criteria etc into the process for judicial appointments, which values were not finding expression in the way the collegium process functioned.
The Govt should be arguing that the collegium method had become a serious threat to judicial independence and to the integrity of our courts, because of the way the system was being manipulated and corrupted.
The Govt should be arguing that judicial accountability is part of the norm of judicial independence.
The Govt should have placed on affidavit before the Court the material which led the Government to conclude that the Collegium system was dysfunctional and was resulting in improper appointments leading to the depletion of both judicial independence and judicial accountability. This material should also have been placed before Parliament. Next the Govt should have placed on affidavit the material to support its claim that the NJAC solution was devised after proper study and reflection and was found to be the best mechanism and containing the reasons why this was the best mechanism. None of this has been done.
Instead the AG and the Judges have been exchanging barbs and innuendos while still skirting around the real issues.
Note that the list of bad appointments was not placed on the court record, it was handed over to the Bench in a sealed cover, which looked at it for a few minutes, returned it to the AG and then dismissed it as containing nothing concrete even though this Bench has no authority to judge or comment on that list.
How was that list prepared and by whom?
The Govt must also honestly tell the court that the executive also played a role in the manipulation and corruption of the collegium system and that the NJAC solution was intended to curb arbitrariness and improper exercise of power in the judicial appointment process not just by the members of the collegium but also by the executive.
______________I am really disappointed at the low quality of both the arguments and the hearing in this case. It really reflects on the low quality of our Supreme Court Judges, our so-called senior advocates and our law officers. This is what you get when you have a small nepotistic club operating in a system of unearned privileges and influence. Merit and ability are no longer relevant.
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.
10 June 2015
Though there are no written rules to this effect, in practice appointment of judges to the Supreme Court of India follow a quota system so that judges from all High Courts all over the country get appointed to the Supreme Court. I have often heard lawyers say that the Bombay High Court quota or the Delhi High Court quota for judges in the Supreme Court is full or has a vacancy. I refer to these High Courts only as an example.
I have sometimes wondered if a Judge from every High Court (say Orissa or Mashya Pradesh or Sikkim) has the relevant experience to be a Supreme Court Judge.
In most High Courts the kinds of cases are quite different from those that reach the Delhi or the Bombay High Courts. Cases involving the federal government, or national security, or defence, or very high value corruption, or complicated commercial disputes, or securities matters, etc do not go before several State High Courts.
Should there be a geographic quota system for judicial appointments to the Supreme Court of India?
____________
Mukul Rohatgi's hit and trial argument is either extreme
incompetence or deliberate sabotage. Does the Narendra Modi Government want to
lose this case. I am beginning to suspect this.
_______________
_______________
There is this little accessed write-up on Indira Jaising's
views that all Indian lawyers should read.
Its quite amazingly blunt on the subjects of Judge
Dynasties, Arun Jaitley’s fan brigade, judicial appointments, sexual harassment
by Judges etc http://www.altgaze.com/?p=1591
It touches on the NJAC issue too, so am reproducing an
extract here.
"This is not the first case of sexual harassment of a
woman judge by a High Court judge, I have dealt with at least two before, both
from Rajasthan. In all the three cases, the route to sexual harassment has been
through the administrative judge, the inspection route, and the inevitable
consequence of refusing unlawful demands has been dismissal and as in this
case, transfer and a resignation which is nothing but a constructive
termination.
In the first case, the woman was asked to come to the
residence of the judge to report, and when she did go, found him in his
underwear opening the door for her. Her complaint only resulted in her being
told that her performance was below satisfactory. She took the matter to court,
demanding an internal inquiry and predictably, the High Court held that they
are not bound by the Vishaka Judgement!!
In the second case, the inspection lasted till 2 am, with no
other woman around, and when she protested, she too was given notice that her
work was not satisfactory and her services were not continued beyond probation.
She complained to the Governer. This is the third case to my knowledge.
Punitive action cannot be left in the hands of the
judiciary. This calls for a constitutional solution, action against the judge.
Have we forgotten Justice Ganguli so easily? And is sexual harassment now
socially acceptable? So much so that Justice Ganguli can proclaim his innocence
on every channel and gets invited to give his opinion on judicial
accountability? There has to be a social boycott of these judges. This time we
must make sure this one does not get away, so as I said, stand by for action
and support her in every way you can.
———
Don’t like to say “I told you so” but, I told you so. Who is
the Law Minister consulting on the Judicial Commission Bill? Former Chief
Justices of India, former Attorney Generals of India, eminent jurists….. read
on: AA Ahmedi, AS Anand, VN Khare, RC Lahoti, K Parasaran, (not M), Soli
Sorabji, Ashok Desai, Fali Nariman, Shanti Bushan, Anil Diwan, KK Venugopal, Harish
Salve, Madhav Menon, Upendra Baxi, Mukul Rohatgi, Ranjit Kumar. Some other
unable to participate.
What an eyewash! From being a club, it has become an inner
club. It makes me angry that civil society has been left out of this equation.
It makes me think, the Judicial Commission will be just another collegium by
another name. It makes me think that one of them will be the “eminent person”
on the Judicial Commission, in any way in a hopeless minority. But the point I
am trying to make it, same difference! Keep it in-house, with this approach,
what kind of judges will you see? As I said, the genetic pool from which they
are drawn is declining. We all know what this means for the health of the
country.
Remember when I asked what do you think of the proposal to
appoint the Judicial Commission for the Appointment of Judges? Markandey Katju
had allowed himself to be used by the Government to drum up hysteria, to bring
in the Bill.Was that necessary? There was indeed a consensus in all parties
that a Bill is needed, so why this hysteria?
Here were my concerns – given that the ruling party enjoys a
brute majority, the commission will be packed with their men, and the judiciary
will be consequently packed with RSS fellow travelers. What a horrible
situation this is.The government has sharpened its fangs by getting rid of
Gopal Subramanium, and appointed RSS committee members as Judges of the Supreme
Court. What can we do? One thing to do is to demand open hearings for
confirmation of the nominees, the right to all to apply for being a Judge of
the High Court, and fairness in designation of Senior Counsel. After all, all
Senior Counsel are “eminent persons” and all law officers are “eminent persons”
who could get on to the Commission.
So stand by for some fun PIL, the judiciary is not going to
take this lying down. All you young progressive lawyers out there, demand to be
designated seniors, apply to become High Court Judges. There is no other way of
beating them at this packing game.The only real opposition that we have is the
judiciary, so unite to save the independence of the judiciary!
———–
We have got accustomed to brother judge, uncle judge, father
judge, aunty judge etc etc, but now, we will see, “my son judge!” I wonder if
this is the first time that a father is practicing in the same court that his
son has been appointed a judge? But then, there is only one Supreme Court of
India and we all practice there, former Ministers, former ASGs, fathers and
sons.
When will India ever change? All the law officers are former
juniors of Arun Jaitley or those who campaigned for his faithfully at the
election that he lost. Several Standing Counsel in the High Court appointed or
due to be appointed are sons of former judges of the High Court. Long live
Democracy in India !
—————
For some strange reason, after I have ceased to be
Additional Solicitor General, I have noticed that I am being asked to appear in
the High Court more often than I was before. I tried to analyze the reason and
this is what I found — The High Court of Delhi is a court in which almost three
generations in a family have been judges, or are currently sons of former
judges. The legal profession is dominated by sons of judges in the High Court
of Delhi. As a consequence, most of these sons find themselves appearing before
the colleague of their father or a former junior of their father. What is more
these lawyers are also sons of sitting Supreme Court Judges, who came form the
Delhi High Court and this gives them an added advantage of an intangible kind.
In this situation, litigants are finding it difficult to
find lawyers who are not a relative of a judge to represent them in court. Now
while this situation may benefit one litigant, it certainly disadvantages the
opponent, and as we all know, everyone is entitled to their day in court. I
then came to the conclusion that one reason why they want me to represent them
is because I am not related to any judge, nor do I socialize with them (to
borrow an expression form Harish Salve “perish the thought “) and this gives me
too an advantage over the son brigade. Why talk so much about Dynasty in
Politics, look inwards at the Dynasty in the Courts. Nothing that the Judicial
Commission can do will put an end to this Son Brigade. Even if there is a
desire to end it, it will take a few generations to cleanse the courts of this
menace, we will have to wait till the judges retire or till the sons go out of
business. Any suggestions how the Judicial Commission can deal with this issue
?
———-
So, with one stroke, Chief Justice Lodha has got four of his
chosen men in — one a former executive committee member to the RSS, one very,
very close to the inner core of the BJP, one whose father represented L K
Advani in the Babri Masjid case, and one who’s father was in the RSS. What a constitutional
coup ! The days of the sons have arrived."
__________________________
__________________________
Another highly corrupt country Nigeria is also facing the
same problem as India of judge dynasties.
But at least in Nigeria they are talking about it openly.
_________________________________
_________________________________
Ha! Found some links on judge dynasties in Indian courts
See http://amit-thadhani.blogspot.in/2014/07/collegium-system-another-word-for.html family histories of some Supreme Court judges
See https://groups.yahoo.com/neo/groups/resortstimeshare-India/conversations/messages/1538 for family histories and dynastic links of some Bombay High Court judges
See http://indiatoday.intoday.in/story/uttar-pradesh-high-court-laid-low/1/122060.html for
a story on the Uttar Pradesh High Court
See http://www.tribuneindia.com/2013/20130708/main5.htm for a story
on the Chandigarh High Court
Read a lawyer's protest concerning the Madras High
Court http://www.nedumpara.com/campaign2.html
9 June 2015
I said it before, 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.
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 http://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:
"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).
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"
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.
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.
In this blog post the author refers to Nariman's book Before Memory Fades and what Fali wrote there on the collegium issue.
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 https://books.google.co.in/books?id=kQo9BAAAQBAJ&pg=PT1&lpg=PT1&dq=nariman+when+memory+fades&source=bl&ots=aRvL8RdnmO&sig=DzkE5CcXgiI7BdiAn7zHFqupgMA&hl=en&sa=X&ei=8Ph2VbniOY3q8AWv8oKABg&ved=0CBwQ6AEwADgK#v=onepage&q=nariman%20when%20memory%20fades&f=false
________________________________________
In an interview published in Outlook Magazine on September 8, 2014, Fali Nariman stated the following on the collegium issue.
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."
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