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Bar is the mother of judges, says CJI

Sometimes the judiciary comes under criticism (Nukta cheen) and the judges do not come forward to defend themselves. If there is somebody who can defend them is the bar, Justice Thakur said without referring to any specific instance.

Chief Justice of India (CJI) T S Thakur said Bar is the “mother” of the judges, and the lawyers know everything about the judges and when the judiciary faces criticism, the bar is to stand up to defend the system.”Sometimes the judiciary comes under criticism (Nukta cheen) and the judges do not come forward to defend themselves. If there is somebody who can defend them is the bar,” Justice Thakur said without referring to any specific instance.Inaugurating the commencement of 125 anniversary celebration of the Tis Hazari Court bar association which is otherwise known as Delhi Bar Association (DBA), Justice Thakur addressed the lawyers in Hindi with extensive use of Urdu words.<!– Dna_Article_Middle_300x250_BTF –>He said, “Judiciary is the strongest and highly respected organs of a democratic set up. Lawyers’ body is the mother of judges. The lawyers know all secrets of the judges. The bar only comes forward to defend the judges for any kind of criticism they face.”Justice Thakur, who is popular among the lawyers for his Sher O Shayari, also cited couplets of Urdu poet Ghalib, and urged the lawyers not to go on strike causing inconvenience to the litigants.He said for smooth functioning of judiciary, the lawyers should co-operate the court by not resorting to strike to achieve their demands before the government.He also sought the lawyers to come forward and render their service pro-bono for poor litigants.Delhi deputy chief minister Manish Sisodia, who was also present on the occasion, assured the lawyers that AAP government will make efforts to provide the lawyers social security, health and housing scheme as urged by the DBA from the state.

Make fresh MOP in consultation with CJI to appoint judges: Supreme Court to Centre

The Supreme Court on Wednesday asked the Centre to prepare fresh memorandum of procedure (MOP) in consultation with the Chief Justice of India (CJI) for the appointment of judges for the apex court and high courts.Issuing a slew of guidelines to improve the collegium system and to make the procedure more transparent and accountable, a five-judge constitution bench headed by Justice J S Khehar also asked the government to look into five key aspects — eligibility criteria, transparency in appointment process, setting up of secretariat for management of selection process, mechanism to deal with complaints against those who are being considered for appointment and to look into the miscellaneous issues.<!– Dna_Article_Middle_300x250_BTF –>Narrating the reasons after examining thousands of suggestions from various quarters, the court said, “The Government of India may finalise the existing MOP by supplementing it in consultation with the Chief Justice of India (CJI). The CJI will take a decision based on the unanimous view of the collegium comprising the four senior-most judges of the Supreme Court,” the bench said.”The MOP may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of the High Court and the Supreme Court) for appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time,” it said.Ensuring transparency in the appointment process, the bench said the MoP for the appointment of judges ought to be made available on the website of the court concerned and on the website of the department of justice of the government of India.The bench also noted that the MOP may provide for an appropriate procedure for “minuting the discussions including recording the dissenting opinion of the judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of judges.”The bench said that for better management of the system, the MOP may provide for establishment of secretariat for each high courts and the apex court and prescribe its functions, duties and responsibilities. The court passed the order after noting the submission of attorney general Mukul Rohatgi that the MOP and introducing amendments therein, had always been prepared by the Government in consultation with the President of India and the CJI.The court also noted down the submissions of the AG who had noted that formulation of MOP was an administrative responsibility which fell in the executive domain and the apex court neither had expertise nor the wherewithal for proposing amendments in the existing MOP which was drawn on June 30, 1999 by the Government for improving the collegium system.

It’s a daunting task, felt obliged: SC on improving collegium

A five-judge constitution bench headed by Justice J S Khehar said that compilation of the written suggestions placed before it was in the nature of a summary prepared out of approximately 11,500 pages of views expressed.
File Photo

The Supreme Court on Wednesday said that it “felt obliged” while dealing with the daunting task of working for improvement of the judicial system of collegium for appointing judges in higher judiciary and termed it as a very challenging responsibility.A five-judge constitution bench headed by Justice J S Khehar said that compilation of the written suggestions placed before it was in the nature of a summary prepared out of approximately 11,500 pages of views expressed.The bench, which passed a slew of guidelines to improve the collegium system to make it more transparent and accountable, took into account the suggestions received from stakeholders who had sent them on the website of the Ministry of Law and Justice.<!– Dna_Article_Middle_300x250_BTF –>”Even though the task seemed to be daunting, we felt obliged to take up the responsibility, as it was after all, for an improvement of the judicial system and such an opportunity must not be lost,” the bench said.”We had a very challenging responsibility to embark upon and reflect, and thereafter, to sieve such of the suggestions as were likely to improve the ‘collegium system’. Only then would we be in a position to sponsor their introduction into the Memorandum of Procedure for the appointment of Judges of the higher judiciary,” it said.In its order, the apex court noted that a few suggestions, “though honestly and meaningfully expressed, contained diametrically opposite recommendations.””It was, therefore, felt that the suggestions received should be compiled in an orderly manner so as to enable all concerned stakeholders to have a bird’s eye view of the same, thereby possibly making the debate thereon more judicious,” it noted.The court also said that Attorney General Mukul Rohatgi had made an “impassioned submission, not in any obstructive manner, but as a matter of faithful assistance, suggesting that we should desist from pursuing the contemplated course of action.”

Outgoing CJI HL Dattu may be the next Chairperson of NHRC

After helming judiciary for 14 months, Justice Handyala Lakshminarayanaswamy Dattu parried virtually avoided controversies during the 40-minute interaction with the journalists covering the Supreme Court.
File Photo
dna Research & Archives
‘Prabhu ki kripa’ was how outgoing Chief Justice H L Dattu reacted to reports that he was being tipped as the next Chairperson of the National Human Rights Commission.”Blessings of God. If I get it, fine. If I do not, even that is fine. I do not know whom they are going to appoint,” he told reporters in an informal chat a day before he demits office.After helming judiciary for 14 months, Justice Handyala Lakshminarayanaswamy Dattu parried virtually avoided controversies during the 40-minute interaction with the journalists covering the Supreme Court.”Debate is on in Parliament and other places. As head of the institution, I should not comment on it. It is not proper”, said Justice Dattu when asked for his views on the ongoing debate on growing intolerance.<!– Dna_Article_Middle_300x250_BTF –>”No comments” was his response to a question whether he regretted not appointing judges in the Supreme Court despite having a long tenure due to pendency of pleas against the NJAC Act. “No comments,” was his reply again when asked whether he considers himself unfortunate about not appointing more judges in the Supreme Court as head of the collegium.”It is a judicial process, it took sometime. I am not unfortunate,” he said in reply to the question.On the issue of filling up over 100 vacancies in various High Courts, the CJI said, “They (Centre) will come back to us as the Constitution bench has permitted the Collegium system to go on. …Those matters which are already pending with the Law Ministry will come back to the Collegium and Collegium will take a call on that.”The CJI also brushed aside a question as to whether there should be a cooling off period for judges after retirement and a new assignment. The outgoing CJI refused to answer a query on grant of bail to Tamil Nadu Chief Minister J Jayalalithaa without issuing notice to CBI in the disproportionate assets case.”I have answered my conscience as a judge,” he said.On the smog covering Delhi sky and his order levying environment compensation charges from trucks entering national capital, he said, “There is much more to be done on the pollution front. The moment Harish Salve put it before us. We took adequate steps and much more is to be done ahead.”Concerned over long pendency of cases, the CJI said though it came down by 6000, the number was going up again with 220 new cases being filed every day.”As CJI, I am bothered about pendency in the Supreme Court as well as the High Court. The day when I had become the Chief Justice, we started with 64,000 pending cases, now we are at 58,000 and odd matters,” he said.”We do not have many (pending constitutional bench matters). The difficulty I faced was that we have to go for constitutional bench matters. The problem was that of sparing judges,” he added. He also expressed satisfaction at the working of the taxation bench, social justice bench and the two benches dealing with criminal cases.Terming his tenure as “satisfying”, Dattu said the best he could do he did for the institution.”No regrets whatsoever. No comments. I can only say that whatever best I could do I have done. I have answered my conscience, Guru and God… I was true to my conscience…,” he said adding,” I am satisfied. If I can make a poor man light a lamp in the house, I am happy.”On being questioned about the criticism of functioning of the judiciary, including judicial overreach, the CJI said, “A judge should not be bothered about what others say but must be answerable to his conscience, Guru and God”. Expressing his views on the nature and importance of PILs, he said, “PIL should be for a cause not as one which came yesterday (plea for CBI probe into the nationality row of Congress vice president Rahul Gandhi).”There is a lot to be done. Otherwise it will create nuisance. Instead of coming to SC, I told them to go the High Court. It would be better if they go to HC then come here. Certainly it will be for public cause,” he said.”There is a lot to be done in this area, otherwise it will make no sense to the people at large and it would be a nuisance,” the Chief Justice said.On the issue of giving adequate representation to women, OBCs and Dalits in higher judiciary, he said, “Again it is a sub-judice matter…the five judges (who had on October 16 held that NJAC was unconstitutional) are going to lay down the procedure that is to be followed.”Let us see what procedure they are going to devise because one of the suggestions is that there should be adequate representation for ladies….there should be adequate representation for Dalits etc. They would certainly tell the future collegium what is to be done.”Regarding CJI designate Justice T S Thakur, he said,”I have worked with him for nine long years. I have practised before him. He was my senior at Karnataka High Court. He will be the best and a wonderful Chief Justice.”I am hundred per cent sure that he will do much better than what I have done (as the CJI). He will take it forward. Today SC looks better,” he said.On cutting down the number of holidays for the judges, Dattu said,”It is a misnomer. Judges do work during holidays.””There is pressure on my judges so they need to go on holidays… they do a lot of work during holidays. I have never been to places like CP and Khan market during my tenure in SC but, of course, I have taken my wife to Medanta and Apollo. Jugdes have to sacrifice and I too have sacrificed a lot,” he said.

Hindu woman, Christian man’s marriage not valid if either does not convert: Madras HC

The woman, who was produced in court by police after the petition was filed, told the judges that she had got married in a temple at Palani, to which they asked how the marriage was valid as per Hindu law if the man did not convert

Marriage between a Hindu woman and a Christian man is not legally valid if either of them does not convert, the Madras High Court said on Thursday.Dismissing a Habeas Corpus petition filed by the woman’s parents, justices P R Shivakumar and V S Ravi said if the couple wanted to solemnise the marriage as per Hindu custom, the man should have converted to Hinduism or she should have converted to Christianity if she wanted to do so as per Christian custom. In the alternative, their marriage should have been registered under the Special Marriage Act, 1954, if they preferred to follow their religions without conversion.<!– Dna_Article_Middle_300x250_BTF –>The woman, who was produced in court by police after the petition was filed, told the judges that she had got married in a temple at Palani, to which they asked how the marriage was valid as per Hindu law if the man did not convert. The woman, however, remained steadfast in her decision to go with him, which they did as she was a major.”As she is a major she can go anywhere she likes, though they had not married as per law,” the bench here said. The judges said that the girl became a major on May 29 and she was free to go to any place at her will. As per law, she did not need care and protection.

If NJAC is invalid, collegium is even more so: Govt has lost a battle, but not the war

After the Supreme Court verdict of 16 October that declared the National Judicial Appointments Commission (NJAC) as unconstitutional, we have virtually gone back to the collegium system. The five-judge bench of the apex court has unfairly refused to allow the government to appeal against its flawed judgment. The reality is that judges have decided to award themselves the right to decide who their brethren should be, with no external checks.

It is also likely that the bench headed by Justice JS Khehar gave this harsh judgment in the context of the current political situation where the BJP and Congress are not on talking terms. So passing a new NJAC law, even with changes, may be extremely difficult in the Rajya Sabha.

So, what can the NDA government do? The first option to be explored is for the BJP to work out a direct deal with Congress on the broad contours of a new legislation. There may be some political give and take in this, but it must be tried. However, the Congress may see more advantage in embarrassing the BJP than doing something that is right in the context of the Supreme Court’s intransigence on judicial appointments. The Congress has already made the ridiculous comment that “the judgment implicitly reflects the lack of confidence in this government” as though it is the judiciary’s job to express confidence (or the lack of it) in favour of (or against) the government when the latter is directly accountable to the people.

Image courtesy: AFPImage courtesy: AFP

Image courtesy: AFP

The obvious answer is to file a new case challenging the constitutional validity of the collegium system.

The NJAC has been struck down, but this need not be construed as a vote of confidence in the collegium system or its constitutional validity. In fact, during hearings on the NJAC the bench itself observed that its job was not to compare the NJAC with the collegium, but to confirm or reject the constitutional validity of the NJAC.

In other words, the constitutional validity of the collegium system has not been decided yet. This is the weak point in the judgment which the government must attack.

Here is what the constitution says about how judges should be appointed.

Article 124 (2)” “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years:

“Provided that in the case of appointment of a judge other than the chief Justice, the Chief Justice of India shall always be consulted.” (Italics mine)”.

So, if the NJAC is unconstitutional, so is the collegium. In fact, even more so. There is no place for a collegium in the constitutional scheme of things. The constitution clearly places the onus on the government (ie, the President) to consult the CJI or other judges “as the President may deem necessary.”

The government must demand a return to this original position to challenge the collegium system. The collegium is a naked attempt by the court to arrogate to itself the power to appoint judges by excluding the executive, and is thus even less constitutionally valid than the NJAC which at least tries to strike a balance between executive and judiciary and has been legislated by both houses of parliament and 20 state legislatures.

The Supreme Court may refuse to entertain the government’s appeal, but it is still the right approach as any refusal to re-examine the collegium system would show up the court as being interested only in its vested interests. The Supreme Court has tried to sidestep this by starting hearings on improving the collegium system, but the government should not fall into the trap. It has to seek another bench to challenge the validity of the collegium.

If the challenge is accepted, there can be a stay on further judicial appointments too, or a temporary truce while the case is being heard – as was the case during the NJAC hearings.

There are, of course, more sly tactics the government can adopt if the court tries to brush aside all concerns about its NJAC judgment. The government could delay and probe decisions of the collegium, raise queries, put judges under the scanner and send reports on judges not found fit. It can also scrutinise the relationships between collegium members and proposed appointees. Justice Kurian Joseph, for example, has alleged that previous collegium members favoured kin over deserving people. And Justice J Chelameswar pointed out how the collegium made a big boo-boo by recommending the name of PD Dinakaran for elevation to the Supreme Court when he had allegedly indulged in questionable land dealings.

The government may have lost the battle, but the war is still waiting to be waged.

NJACked! How Supreme Court has usurped powers it never had under the Constitution

The Supreme Court has run a coach-and-four over a key feature of our constitutional democracy: it has unilaterally upended the balance of power between the people, the legislature, the executive and the judiciary. By overturning the 99th constitutional amendment for the setting up of a National Judicial Appointments Commission (NJAC) to select and transfer judges in the higher judiciary, the court has effectively arrogated to itself the right to appoint judges.

In a 4-1 verdict on Friday (16 October), the five-judge bench headed by Justice JS Khehar restored its earlier – and fairly discredited – collegium system, a system it concocted in violation of the original scheme of the constitution where the president appoints judges after consulting the Chief Justice. The court was an interested party in the litigation, but it still went ahead and overturned the will of the people as represented in parliament and the legislatures which voted overwhelmingly in favour of abolishing the collegium system.

A file photo of Supreme Court of India. ReutersA file photo of Supreme Court of India. Reuters

A file photo of Supreme Court of India. Reuters

While Justices Khehar, MB Lokur, Kurian Joseph and AK Goel voted to strike down the NJAC, Justice J Chelmeswar upheld its constitutional validity. Justice Chelameswar is the only hero in the story. Soon, judges will resume appointing their brethren through the collegium, a system followed by almost no other country in the world.

The verdict is grossly wrong for the simple reason that the various arms of democracy derive their legitimacy from the people, directly or indirectly. The people elect legislatures, legislatures elect the head of the executive, the executive drafts laws which legislatures have to approve, and the judiciary has to interpret this law. It cannot make the law by itself. Judges in any free country are either appointed by the executive, by the legislature or an independent panel, but seldom are they appointed by the judiciary itself.

Of course, it can be argued that the NJAC system violates the spirit of judicial independence since it has a politician – the law minister – as one of its members. This would imply the possibility of political pressure. The cure for this incongruity is to read down the NJAC law to exclude the politician, while retaining its core independence. Throwing out the entire NJAC construct without even giving it a trial is simply wrong and a clear judicial usurpation of power that it was not given under the constitution.

In the constitution as it stood before the NJAC was legislated, there was no place for a collegium. Here is what article 124(2) says about how judges to the higher judiciary must be appointed:

“124 (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years: Provided that in the case of appointment of a judge other than the chief Justice, the Chief Justice of India shall always be consulted.” (Italics mine)

Where does one find any mention of a collegium here or even judges having final say in appointing judges? Not only this. The constitution clearly places the onus on the government (ie, the President) to consult the CJI or other judges “as the President may deem necessary.”

In other words, the executive has to be a key player in the appointment of judges even if does not have the final say.

In fact, in a 1981 judgment, the Supreme Court had itself asserted that the power to appoint judges lay solely with the President (ie, the government), subject only to the proviso that it will effectively consult the judiciary.

However, as senior counsel TR Andhyarujina wrote in an article in The Indian Express last year, in two subsequent judgments, the court, “professing to safeguard the independence of the judiciary, reversed the first verdict and rewrote the constitutional provisions to hold that the primacy in the appointment of a judge of the Supreme Court was with the CJI, who would make his recommendation to the president after consultation with two of his senior judges.” In a later judgment, the court “diluted the primacy of the CJI and gave the power of appointment to a collegium of the CJI and four of his senior-most colleague.”

As I asked earlier, “can the Supreme Court overturn an explicit provision of the constitution and arrogate to itself the right to appoint judges without reference to the government? Can it interpret the law in a way where it is the beneficiary of the interpretation? Has not the Supreme Court itself breached the basic provisions of the constitution by doing so?”

By overturning the NJAC law and not even allowing the government to appeal against the five-judge bench’s order, the bench has effectively written a new law for the appointment of judges – just as it did in the 1990s. The mere offer to hold hearings to make the collegium system better does not give this verdict any greater legitimacy.

Perhaps the court was emboldened by the current political climate, where the parliamentary stalemate may make it tougher for the government to re-enact a different NJAC law. But that does not do it any credit. In this situation, one can be sure that a judiciary-executive conflict is inevitable.

It is also worth talking about the independence of the judiciary – since the bench talked a lot about it in its 1,030-page verdict. Independence comes from integrity, and not just by having the right to appoint your brethren.

The fact is judges in India can be influenced in many ways. According to allegations made in open court, former Law Minister Shanti Bhushan alleged that eight of 16 former CJIs were corrupt and he said he was willing to be in contempt of the court for this statement.

This is what legal portal Law Resource India had to say about this allegation: “After former Union Law Minister Shanti Bhushan alleged that eight of 16 former Chief Justices of India were corrupt, his advocate son, Prashant Bhushan, filed another affidavit in the Supreme Court listing alleged instances of corruption against six of them – Justice Ranganath Mishra, Justice KN Singh, Justice AM Ahmadi, Justice MM Punchi, Justice AS Anand and Justice YK Sabharwal.”

As for KG Balakrishnan, a former judge of the Kerala High Court, Justice PK Shamsuddin (1986-93), and a Gandhian and humanitarian who served with the former CJI, alleged that Balakrishnan must be probed because he (Shamsuddin) was once approached by a Bangalore-based person to act as an intermediary to a fix case in the Supreme Court.” (Read this Firstpost story on this case).

However, there are more subtle ways of influencing judges – by offering them post-retirement jobs or sinecures.

The system is compromised because many judges are promised jobs after retirement. According to this Indian Express report of July 2012, “Of the 21 judges to have retired from the Supreme Court since January 2008, 18 got jobs in different government commissions and tribunals. In many cases, judges accepted post-retirement appointments much before they formally demitted office – at least three of them when they still had many months of service left….In many cases, the names were recommended by the Chief Justice himself.”

One can understand using the experience of judges for running quasi-judicial organizations, but if there is no cooling off period between retirement and new postings, what is the guarantee these judges will be truly independent? Won’t they be beholden to the government that gave them these sinecures?

Independence is about integrity. It cannot be legislated or ensured by judges selecting themselves. The collegium is a sure way to ensure omerta on judicial appointments. The NJAC deserved a chance.

Supreme Court verdict on NJAC triggers government, judiciary face off

The Modi government on Friday suffered a second setback over its pet reforms with the Supreme Court quashing the National Judicial Appointments Commission (NJAC) and restoring the collegium system. The move has brought the government and the judiciary virtually on the verge of a confrontation.Earlier this year, the government was forced to withdraw the Land Acquisition Bill in the wake of stiff resistance from the Opposition. The bill to set up the National Judicial Commission for appointment of judges in the higher judiciary, a promise in the BJP manifesto, was passed unanimously in August, 2014. This also coincided with the delay in another major reform programme of bringing uniform goods and services tax.<!– Dna_Article_Middle_300x250_BTF –>Telecom minister Ravi Shankar Prasad, who held the law portfolio when the NJAC bill was passed, described the verdict as a setback for Parliamentary sovereignty, saying that there was 100 per cent unanimity in Lok Sabha while only one MP– Ram Jethmalani– in Rajya Sabha. Congress who conceived the bill, welcomed the judgment saying an independent judiciary was fundamental to a democracy.Soon after the Court verdict, law minister Sadanand Gowda and Prasad expressed their surprise and said the government will come out with a structured response after examining the judgment in detail and holding consultations.Later, Prasad held a press conference at the BJP headquarters. “While upholding very dearly the principle of independence of judiciary, I regret to say that parliamentary sovereignty has received a setback today,” Prasad told reporters at the BJP headquarters here. Prasad, a lawyer himself, admitted that the NJAC was a part of judicial reforms that was exercised after deep consideration for over 20 years.”Various commissions headed by eminent judges, including Administrative Reforms Commission and different parliamentary committees had recommended NJAC,” said the communication minister, who is a lawyer by profession and a former law minister.Prasad said even former chief justice JS Verma had publicly raised misgivings on the working of the collegium system and had suggested a serious rethink. “Twenty legislatures of the states unanimously approved it despite the continuous divide in the politics of India,” he said. Gowda said a decision will be taken after consulting senior colleagues and Prime Minister Narendra Modi.The Congress refused to toe the same line as the BJP-led government, which described the bill as the ‘collective wisdom’ of Parliament. Congress spokesman Randeep Singh Surjiwala said the NJAC judgment implicitly reflected lack of confidence in government which has eroded institutional autonomy and constitutional safeguards over last 17 months. He said the party was happy to note that Constitution Bench of Supreme Court had itself recognised the shortcomings of collegium system s and directed to hear arguments on the issue of ensuring transparency, accountability and responsibility in the first week of November, 2015. The party also cautioned that the issue should not be looked as confrontation between Parliament and judiciary.However, Goa’s Congress MP Shantaram Naik, who had headed Parliamentary Standing Committee that cleared the National Judicial Appointments Commission Bill, 2013 took a different line. He regretted that the judges in the name of interpretations, have laid down their own ‘laws’, disregarding Parliament and at times, go to the extent of giving directions to government to enact a particular legislation in particular manner. He suggested that the President should be empowered to constitute a bench of eminent jurists, outside the judicial framework of the Supreme Court judges, to decide the fate of legislations like this in which the judges’ interests are involved. While enacting the law, he said Parliament had unanimously echoed its opinion that there was a tremendous element of nepotism of serious nature in the appointment of judges and moreover in no country the judges themselves appoint the judges. Naik further said the Supreme Court had usurped the power of government to appoint the judges in consultation with the judiciary until 1993 when it bestowed upon own judges the power of appointment by the instrument of judicial pronouncement.

Supreme Court verdict on NJAC snubs Parliament, people’s will; but tussle not over, picture abhi baaki hai

The five-judge Supreme Court’s verdict striking down the National Judicial Appointments Commission (NJAC) puts the judiciary in conflict with not only the executive but the will of the people. That the apex court can strike down a law passed with overwhelming majorities in both houses of parliament and by 20 state assemblies shows that it is more keen to protect its own narrow interests than see its powers in the wider context of achieving the right balance of power between legislature and judiciary.

Reuters image.Reuters image.

Reuters image.

While the details of the reasoning behind the bench’s verdict are awaited, the point that needs underscoring is that the judges are themselves an interested party in this verdict. So the judgment can hardly be called impartial or credible. A larger constitutional bench needs to rehear the matter.

To be sure, the NJAC bill was not exactly perfect. The court was right to consider the issue of judicial independence, and whether the new law would affect this. But the logical thing to do was to read down the NDA law so that the power of the executive to influence appointments to the higher judiciary was limited. In particular, the insertion of the law minister into the commission could have been proscribed, and a more politically neutral member position created.

Worse, the judgment appears to have restored the old, opaque collegium system with no checks and balances. That system was the result of the court effectively reinterpreting Ambedkar’s constitution to mean that the executive will have absolutely no say in the appointments of judges. Judges will thus appoint themselves, violating the fundamental democratic principle of balance of power and checks and balances.

The bottomline: we have not heard the last of this issue. The battle will be rejoined shortly.

Here’s what I had said earlier on matter.

The government’s aggressive stand during hearings in the Supreme Court on the constitutional validity of the National Judicial Appointments Commission (NJAC) will effectively ensure that even if the bench strikes down the law, the old collegium system will not be revived.

The NJAC law, passed in 2014 by both Houses of Parliament almost with no dissent, and by 20 states assemblies subsequently, clearly represents the overwhelming will of the people of India. This does not mean the court can’t strike it down on grounds of unconstitutionality, but it will certainly make the collegium system of appointing judges impossible to defend or revive.

The collegium system came into being in the 1990s when the Supreme Court decided in two cases that judges will appoint themselves — unheard of in most parts of the world — and giving the executive almost no say in the business. This was not the mandate of the original Article 124 of the Constitution on the appointment of judges, which said that the President will appoint judges after consultations with the Chief Justice and any other judge he may want to.

That the judiciary does not like the NJAC has been apparent from the start. First, the petitioners forced Justice AR Dave to recuse himself from the bench as he would have been part of the NJAC by law. This was followed by the CJI, HL Dattu, also refusing to join the committee to pick eminent persons to join the NJAC.

The five-judge bench hearing the NJAC case also got the government to agree that the tenures of the additional judges whose probation would have ended during the pendency of the hearings would be extended without constituting the NJAC.

However, Attorney General Mukul Rohatgi has been more than blunt in his arguments before the bench in order to send the clear message that there was no way the collegium could be restored. At best, there can be a stalemate over the appointment of judges, which neither government nor the judiciary may want.

First, Rohatgi argued that the collegium system, which was brought in by a nine-judge bench, cannot be restored or the NJAC law overturned by a smaller, five-judge bench. He also got five BJP state governments to send in their lawyers to back his contention.

At the hearing yesterday (11 May), Rohatgi not only again sought an 11-judge bench to hear the case, but also said that the collegium system was dead. This court could not revive it, for Parliament will not be pushed around by what it would say when it had decided otherwise.

According to a report in The Indian Express, the bench asked Rohatgi what would happen if it quashed the amended Article 124 that enabled the constitution of the NJAC. His unambiguous reply: Article 124 is over. If the court strikes it down, Parliament would not revive the old article, which a nine-judge Supreme Court bench had interpreted to give itself an unintended mandate to choose judges.

The Express reports that the Rajasthan government’s lawyer, K Parasaran, made it clear that Article 124, in the form it had been interpreted by the top court to establish a collegium, would never be revived.

To drive home the message deeply, Rohatgi emphasised the court’s own interest in the case. He pointed out, unsubtly, that the court was effectively judging its “own cause”.

The five-judge bench may yet recuse itself and ask for a 11-judge bench to finally hear the case. But it was left in no doubt that the collegium system was never going to come back.

NJAC may be stillborn, but the collegium is over for good.

SC strikes down NJAC: A short timeline of the controversial law for appointment of judges

The Supreme Court’s scrapping of the National Judicial Appointments Commission (NJAC) is the latest development in a battle between the judiciary and the legislature over appointment of judges to the higher judiciary. The issue has seen several twists and turns, with court pronouncements, committee reports and legislative actions, interspersed with strongly-worded opinions on both sides of the divide.

Here’s a short history of what the controversy is all about-

The SC verdict in 1981 that set the ball rolling 

In 1981, the Supreme Court gave its judgment in what came to be known as the ‘first judges’ case’, in the case of SP Gupta vs President of India & Ors.

The judgment ended with the majority ruling that the Chief Justice of India’s opinion is not binding for deciding on appointments of judges of the High Court and Supreme Court. This, in effect, meant that the legislature would have a say in their appointment.

Representational image. Image courtesy: ibnliveRepresentational image. Image courtesy: ibnlive

Representational image. Image courtesy: ibnlive

Supreme Court in 1993 says only judiciary should take lead in appointment of judges

In 1993, another bench of the Supreme Court, headed by Chief Justice J S Verma struck down the earlier view on the issue and held that the judiciary must be given primacy.

This was the judgment which led to the setting up of the collegium system, which is the bone of contention at present. In the collegium system, the Chief Justice of India and four other senior-most judges of the Supreme Court decide the appointments to the higher judiciary, a report by The Hindu said.

SC clarifies in 1998 that Chief Justice has to take into account a ‘plurality’ of judges for making a decision

The third judgment, in the year 1998, stated that the Chief Justice of India has to take into account the views of a ‘plurality’ of judges before making decisions on appointments. This was in response to a reference by the President in which the Supreme Court was asked to clarify whether the Chief Justice has to take the opinion of other judges, or if it is not necessary.

Law Commission report in 2008 sparks debate on efficiency of collegium 

In 2008, a report of the Law Commission of India gave rise to the debate on whether the system of judges appointments themselves was a good one. It pointed out that in other countries, the executive is either the sole authority to appoint judges, or it appoints judges in consultation with the Chief Justice. Saying that the second judges’ case had completely eliminated the role of the executive, it said, “It is time the original balance of power is restored.”

Govt introduces NJAC Bill in Lok Sabha in 2014

On August 11, 2014, the government introduced the National Judicial Appointments Commission Bill in the Lok Sabha. Under the bill, the collegiums system would be scrapped and a commission, which would include members of Parliament, would do the job of appointing judges.

On 13 August, it was passed in the Lok Sabha and the next day, it was passed in the Rajya Sabha. On 1 January this year, the President gave his assent to the Bill.

Supreme Court holds NJAC unconstitutional

On October 16, the Supreme Court has held the NJAC to be unconstitutional and restored the collegium system.

US court dismisses 1984 riots case against Sonia Gandhi

The three-judge panel of the US Court of Appeals for the Second Circuit ruled that it found the arguments presented by Sikhs for Justice (SFJ) in its case against Gandhi “without merit”.

Sonia Gandhi

An appeals court in New York has affirmed a district judge’s order to dismiss a human rights violation lawsuit filed against Congress president Sonia Gandhi by a Sikh group in connection with the 1984 anti-Sikh riots case, ruling that the petition lacked merit.The three-judge panel of the US Court of Appeals for the Second Circuit ruled that it found the arguments presented by Sikhs for Justice (SFJ) in its case against Gandhi “without merit”. The bench of Circuit Judges Jose Cabranes, Renna Raggi and Richard Wesley affirmed the district court’s order of June 9, 2014 in which the judge had dismissed the human rights violation lawsuit filed by SFJ against Gandhi.<!– Dna_Article_Middle_300x250_BTF –>US District Judge Brian Cogan had granted Gandhi’s motion to dismiss the complaint due to “lack of subject matter jurisdiction” and failure to state a claim. “Upon due consideration…, it is hereby ordered, adjudged, and decreed that the judgement of the District Court is affirmed,” the three-judge bench said in its order issued here yesterday.Gandhi’s lawyer eminent Indian-American attorney Ravi Batra termed the appeals court ruling as “historic” and said the judges have upheld a nation’s sovereignty by declared Gandhi free of any fault – despite SFJ’s “reprehensible defamatory efforts”. Batra told PTI in a statement that SFJ should “publicly apologise” to Gandhi and to every leader it has sued without just cause or any legal right or standing to do so, and state that it will no longer hurt genuine victims of 1984 by selling false hope that only re-victimises them.”SFJ making false, reprehensible and defamatory allegations against India’s leaders is the wrong recipe,” he added. SFJ legal advisor Gurpatwant Singh Pannun said the group will file a petition for a “rehearing en banc” with the appeals court challenge the order within 14 days of the order.SFJ had filed a lawsuit in 2013 against Gandhi accusing her of allegedly shielding and protecting Congress party leaders in the anti-Sikh riots that had erupted following the assassination of former Prime Minister and her mother-in-law Indira Gandhi.

Contrary verdicts on right to privacy raise issue of judicial discipline: SC

New Delhi: The view of smaller benches that right to privacy is a fundamental right, contrary to the verdicts rendered by larger six and eight-judge benches, raises issue of “institutional integrity and judicial discipline”, the Supreme Court observed on Tuesday.

Representational image. AFP

Representational image. AFP

A three-judge bench headed by Justice J Chelameswar agreed with the submission of Attorney General Mukul Rohatgi that an authoritative pronouncement from the bench of appropriate strength was needed as there have been inconsistent decisions.

He had cited judgments, pronounced by benches of higher strengths, which had held that right to privacy is not a fundamental right and subsequently, smaller benches had held a contrary view.

The bench said there appears to be “certain amount of apparent unresolved contradiction in the law” declared by the apex court and quietus has to be given to the kind of controversy raised in this batch of cases once for all.

The three judges were of the opinion that the cases on hand raise far-reaching questions of importance involving interpretation of the Constitution.

“What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21.

“If the observations made in MP Sharma and Kharak Singh are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.

“At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger benches of this court cannot be ignored by smaller benches without appropriately explaining the reasons for not following the pronouncements made by such larger benches,” the bench said.

The court said, “With due respect to all the Judges who rendered the subsequent judgments – where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.”

It said, “in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of MP Sharma and Kharak Singh is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”

PTI

Union cabinet to decide on one rank one pension for HC judges on Wednesday

New Delhi: The Union cabinet is likely to take a call on Wednesday on the long-pending demand of high court judges of one rank one pension.

According to the law ministry proposal which is on tomorrow’s agenda of the Union cabinet, a bill is proposed to rectify an anomaly as per which judges selected from the Bar get lesser pension than those elevated from state judicial services.

Representational image. AFPRepresentational image. AFP

Representational image. AFP

The proposal to amend the High Court Judges (Salaries and Conditions of Service) Act, 1954, comes more than a year after the Supreme Court ruled that such a discrepancy must be removed.

According to the apex court ruling, if the service of a judicial officer is counted for fixation of pension, there is “no valid reason” as to why the experience at Bar cannot be treated as equivalent for the same purpose.

“…we accept the petitioners’ claim and declare that for pensionary benefits, ten years’ practice as an advocate be added as a qualifying service for judges elevated from the Bar.”

The apex court ruling delivered by a bench headed by the then chief justice of India P Sathasivam on 31 March 2014 had also said that “one rank one pension must be the norm in respect of a Constitutional office.”

“The amendment bill is based on the Supreme Court judgment…we are only implementing the judgement,” a senior government functionary said.

The apex court ruling came on a clutch of petitions filed by former judges of various high courts as well as by the Association of the Retired Judges of the Supreme Court and the High Courts elevated from the Bar.

PTI

Bombay HC stays order on probe into 26/11 call records of slain cop Ashok Kamte

“On due consideration of submissions advanced, in the light of provisions of Right to Information Act, we are of the view that contentions raised by the petitioners (government) as against the impugned order, require consideration,” said a bench of Justice V L Achliya and Justice Anoop Mohata.

On a Maharashtra Government plea, the Bombay High Court has stayed an order of Chief Information Commissioner asking the state to hold an inquiry into the call data records of telephonic talks between police control room and wireless set of slain IPS officer Ashok Kamte during the 26/11 terror attacks.”On due consideration of submissions advanced, in the light of provisions of Right to Information Act, we are of the view that contentions raised by the petitioners (government) as against the impugned order, require consideration,” said a bench of Justice V L Achliya and Justice Anoop Mohata.<!– Dna_Article_Middle_300x250_BTF –>”We are, therefore, of the view that a prima facie case has been made out to grant interim stay to the impugned order. We are inclined to grant adinterim stay till final disposal of the matter,” the Judges said in their order on June 17. Kamte’s wife Vinita had under RTI sought call logs of wireless conversations between the police control room and her husband Ashok Kamate’s van in which he was killed along with Maharashtra ATS Chief Hemant Karkare and encounter specialist Vijay Salaskar.She alleged that the details were first denied to her. However, when the information was provided in November 2009 and February 2010 there were serious discrepencies. She then complained about this to the Chief Information Commissioner. On July 9, 2014, Chief Information Commissioner, while dealing with the matter filed under the provisions of Right to Information Act, passed an order directing the state to conduct an enquiry into the matter through sitting or retired Judge, in accordance with Commission of Inquiry Act.The state challenged the impugned order contending that the Chief Information Commissioner had no jurisdiction or competence to pass such an order directing the state to conduct an inquiry under the Commission of Inquiry Act. The HC issued notice of final disposal to Vinita Kamte and other respondents. Further hearing will he held on July 30. Senior lawyer Shekhar Naphade appeared for the state while no one appeared on behalf of Kamte’s wife.

Bombay HC directs state to shift jailed Delhi University Professor to hospital

The Judges had taken suo moto (on its own) cognisance of the matter following a letter by activist Purnima Upadhyay highlighting the condition of the professor arrested last year by Maharashtra police for his alleged links with Maoists.

The Bombay High Court on Wednesday asked Maharashtra government and other state authorities to shift professor of Delhi University, arrested a year back for alleged links with Maoists, to a private hospital in view of his deteriorating health condition in Nagpur jail.The order was passed by a division bench of Chief Justice Mohit Shah and Justice Anil Menon which asked the head of neuro-surgery department of a private hospital in Nagpur to file a report within a week on the deteriorating health condition of the undertrial professor G N Saibaba.The Judges had taken suo moto (on its own) cognisance of the matter following a letter written to it by activist Purnima Upadhyay highlighting the condition of the professor who was arrested last year by Maharashtra police for his alleged links with Maoists.<!– Dna_Article_Middle_300x250_BTF –>According to the letter written by Upadhyay, Saibaba is 90 per cent handicapped due to post-polio paralysis and is bed-ridden. Issuing notices to the authorities, the HC had last week asked them to file affidavits giving details of Saibaba’s health condition and the status of the investigation against him and also stating whether a charge sheet against him has been filed or not.

NJAC hearing: Undeserving people are judges due to collegium system, says Mukul Rohatgi

New Delhi: The Centre on Thursday sharply criticised the erstwhile collegium system of appointing judges saying that it did not follow the principle of meritocracy in which many “undeserving” persons became judges, some of whose names it gave in the Supreme Court.

Attorney General Mukul Rohatgi, who on Wednesday was asked to give a list of “bad appointments of judges” made under the collegium system, today gave seven to eight names of judges who were appointed despite adverse reports from the Intelligence Bureau.

He claimed that when the collegium insisted on such recommendations, the Centre was bound to accept them.

“The collegium did not follow the principle of meritocracy in appointing judges and hence, many undeserving persons got appointed as judges,” Rohatgi told a five-judge bench headed by Justice J S Khehar hearing petitions challenging the validity of the National Judicial Appointments Commission (NJAC) Act.

AG Mukul Rohatgi. Image courtesy: IBNLiveAG Mukul Rohatgi. Image courtesy: IBNLive

AG Mukul Rohatgi. Image courtesy: IBNLive

“In 2013, the proposal of appointing a judge was dropped. Then, why should the Chief Justice of India revive the same proposal before demitting the office. I say how and why it was done.

“The proposal was earlier opposed by two judges of this court long back. Then why was it revived. I am just responding to a short query,” he said to a bench which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.

On the plea that the appointments were insisted upon by the collegium, the bench said, “You (Centre) had all the means. What was the IB doing. It is not the job of the IB to choose a man of choice…”.

Rohatgi also raised the issue of seniority being considered over efficiency while promoting a judge and said, “a judge who did not dispose of three figure cases became the Chief Justice of different High Courts and judge of the Supreme Court”.

“Mistakes will be there, whether this system or that system. But the question is how serious are they,” the bench said.

During the hearing, Rohatgi also went on to say that “a bad judge should not be allowed to come as one bad fish spoiling the whole (system). One bad egg does the same.”

Defending the National Judicial Appointment Commission (NJAC), Rohatgi today referred to the concept of separation of powers between different organs of state.

“Most significantly, it envisages an independent judiciary existing within a system of checks and balances between various branches pervading the entire constitutional scheme.

“Thus when the validity of the 99th Amendment against the basic structure is to be assessed it must be in the light of various facets of the basic structure and not merely against an absolutist conception of judicial independence as has been contended by the petitioners.

“In addition to the independence of judiciary and separation of powers, democracy has also been held to be one of the basic features of the Constitution,” he said.

He said independence of the judiciary forms part of the basic structure and is an essential feature of the Constitution.”

“It is thus submitted that multiple features and aspects of the Constitution are relevant in understanding how the independence of the judiciary is sought to be protected in India. It is not limited to the method of appointment of judges alone,” he said.

Independence of judiciary, whether functional independence for judges or institutional independence of the judiciary, is located in a number of features not limited to appointment alone, he said.

He further said that the separation of powers and checks and balances also form part of the doctrine of Basic structures and no organs of state can enjoy absolute freedom.

“The importance of the judiciary retaining public confidence, especially in the manner in which appointments to the higher judiciary are carried out thus must be seen both in the context of independence of the judiciary as also the need for checks and balances on it,” he said.

The new law makes an attempt to ensure plurality in the appointment process by requiring presence of the CJI, two senior-most judges of the Supreme Court, Law Minister and two eminent persons on the NJAC.

“Such a diverse composition would ensure plurality, which is intended to act as a check against arbitrary decision-making, while maintaining judicial independence,” the AG said.

Rohatgi also referred to judges’ appointment procedures adopted in 15 democracies in the world and said, “it is submitted that with the exception of Italy to a limited extent, in none of the countries surveyed does the judiciary enjoy any primacy in the matter of appointments.

“Even in Italy, the chairperson of the CSM (appointments commission) is the President, who ultimately appoints judges. In no country is participation of the executive per se or even its dominant participation, opposed or frowned upon. Such lack of judicial primacy is not seen as detracting from the existence of an independent judiciary in any other countries.”

He also gave the procedures adopted in countries like Kenya, Pakistan, South Africa and UK and Israel.

Rohatgi also referred to the appointment of judges in Patna and Madhya Pradesh where appointments were made despite reservations from the Executive.

“There is a recent case of Madhya Pradesh. Five names were proposed in April, 2014. The collegium rejected two names due to intra-family division and due to adverse IB report. And later, it recommended one against whom an adverse IB report was there,” he said.

Referring to a recent incident of Madras High Court where a judge issued a contempt notice to the Chief Justice of the High Court, he said, “Many judges appointed by collegium are creating havoc in the country. They do not follow the decorum and discipline.

“You cannot say how a judge would turn out to be. The person later creates a havoc by warning the Chief Justice with contempt action.”

Senior advocate K K Venugopal, who had represented the Madras High Court registry before the apex court in the case, supported Rohatgi and said that now the same High Court judge has lodged a complaint against the Chief Justice of India before the SC/ST Commission.

In the day-long hearing, he also raised the issue of public faith in the judicial system and cited an example of a former apex court judge who used to come late and this fact was well known before elevation to the Supreme Court.

“Judges, who have no sense of dignity and decorum have been here for long. The court should not sit on this for late. If you want to do it you do,” Rohtagi said, adding that the judiciary should have taken corrective measures.

“It is a pitiable situation”. The Chief Justice of India and the Chief Justice of High Courts should “put their house in order”, Rohatgi said and made clear that this (on the late coming of the judge) was his personal opinion unrelated to the present case.

PTI

‘Judges appoint judges’: SC bench takes exception, pulls up Attorney General Rohatgi

New Delhi: The Supreme Court on Monday witnessed sharp exchanges when it took exception to Attorney General Mukul Rohatgi using the phrase “judges appointing judges” to attack the collegium system and observing that BR Ambedkar would have turned in his grave at the way the power was taken away from the executive.

The five-member constitution bench headed by Justice JS Khehar also hit back saying the constitution framer would have turned in his grave many times “with all that is happening”.

Supreme Court of India. AFPSupreme Court of India. AFP

Supreme Court of India. AFP

The interesting exchanges took place as arguments resumed in the case challenging the National Judicial Appointment Commission (NJAC) Act which seeks to replace the two-decades-old collegium system.

“What is this? You (Centre) use it just because this is a catchy phrase. It cannot be like that. The President appoints the judges,” said the bench.

The bench’s observation came when Rohatgi said “the Constitution framers did not think and envisage that the judges will appoint judges. This (collegium) system was foreign to the Constitution”.

The bench also questioned Rohatgi for referring to the debates in the Constituent Assembly on Articles relating to appointment in higher judiciary when Art 124 (establishment and constitution of Supreme Court) is already amended.

The Attorney General said that it was being referred to show the intent of the framers that the decision to appoint judges would be an “executive” one and it was “turned upside down” in 1993.

“Ambedkar would have turned in his grave considering what happened to Article 124 in 1993,” Rohatgi said.

“With all that is happening, Ambedkar would have, by now, turned many times,” hit back the bench, which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.

Rohatgi said that it was the will of the people to have a “transparent, accountable and criteria-based” appointment of judges through the NJAC.

He described the junked collegium system akin to “you scratch my back, I will scratch yours”.

During the hearing, the bench referred to Articles 74 (council of ministers to aid and advise President) and 124 (establishment and constitution of Supreme Court) and asked the Centre to distinguish the role of the President under both the provisions.

“Under Article 74, the President ‘shall’ exercise his powers on the aid and advice of the council of ministers,” the bench said, adding that the primacy lie with the executive.

The bench then referred to Article 124 and asked Rohatgi to clarify as to whether does the same principle applies in the appointment of judges and where the judiciary has the primacy.

“The appointment of judges is an executive function and the President acts on the aid and advice of the council of ministers. The President does not act as per his discretion,” Rohatgi said, adding, “it is not as if, the first citizen of of the country is banned from consulting, on his own, any judges. The role of the President, really speaking, is ceremonial.”

When the AG tried refer to a judgement on the issue, the bench said, “Do not answer off-the-cuff. Take your time.”

Rohatgi said the appointment of judges was purely an executive function till 1993 and the provisions said that there would be “mandatory” consultation with the Chief Justice of India (CJI).

“In any event, the Second Judges Case/Third Judges Case, evolved a new system of a collegium-based appointment in response to particular exigencies at that time, a system which did not exist in the Constitution,” he said.

He then referred to sequence of events prior to the introduction of collegium system.

“The sequitur of this analysis in the instant case is that there were ‘compelling forces’ in terms of executive over-reach in appointments, starting with the supersession of judges in 1973, mass transfer of judges in the Emergency in 1976, a second supersession in 1977 and continuing itinerant interference over the 1980s, which provided the context for the creation of the judicial collegium and vesting primacy in the judiciary in the matter of appointments in the Second Judges’ case.

“A system devised to address particular concerns cannot assume permanence for all times to come. This is especially because the collegium having operated for over two decades has meant that different issues and concerns have arisen, which Parliament has now in its wisdom decided to address,” he said.

The Attorney General also referred to the speech of the Law Minister in Parliament and said that several attempts have been made to replace the collegium system in the past.

“There was the Constitution (Sixty Seventh Amendment) Bill, 1990. The Bill lapsed. Then there was the Constitution (Eighty Second Amendment) Bill, 1997. It could not be passed. Then there was the National Judicial Commission, 1998.

“Thereafter, there was the Constitution (Ninety Ninth Amendment) Bill, 2003 …Then there was the National Commission to Review the Working of the Constitution, 2003. Then there was the Second Administrative Reform Commission, 2007. And many other efforts were made. Then there was the Law Commission Report,” Rohatgi, quoting the speech of the Law Minister, said.

He further said that though there was no “primacy” given to judiciary in the appointment of judges, but the NJAC provides that two, out of three judges, can stop the appointment of judges.

“But, in NJAC, there is no right to insist on a particular appointment and the right to insist on a particular appointment is not part of basic structure of the Constitution,” he said.

Primacy of judiciary in judges’ appointment is not a basic feature of Constitution and is also not connected with judicial independence, he said.

“Parliament’s power to amend the Constitution is plenary, subject to only one restriction, i.e. it cannot abrogate the basic structure of the Constitution, which has to be culled out from specific articles of the Constitution as originally enacted.

“Parliament is best equipped to assess the needs of the people and the changing times and the wisdom of Parliament is not subject to judicial review,” he said.

He also referred to the contents of speeches made by various members, cutting across the party lines, in the favour of the NJAC in both houses of the Parliament to there was strong will of the people.

“Why only 20 states have ratified it,” the bench said.

“This more than the required,” Rohatgi said, adding that the there has been an over-whelming support in Parliament in favour of the law.

The AG termed as “alarmist” the apprehensions raised on the future functioning of the NJAC saying that the recent appointment of the CVC shows that even political opponents can behave in a “mature” manner for ensuring rule of law.

He then referred to criticisms of the collegium system made by eminent jurists and former judges of the apex court.

Late Justice V R Krishna Iyer said, “Another great deficiency is that a collegium that is untrained in the task, selects judges in secret and bizarre fashion. There could be room for nepotism, communalism and favouritism in the absence of guidelines.

“The selection process excludes the Executive. Nowhere in the world do we have judges alone selecting other judges. The collegium is a disaster: the P D Dinakaran episode is an example?”

“Do you want to say that two eminent persons would be trained?,” the bench said.

Earlier, the court had rejected the Centre’s plea that the petitions against the NJAC be referred to either nine or 11 judges bench.

The bench, however, had clarified that the issue relating to challenge to the National Judicial Appointment Commission Act, 2014 can be referred to a larger bench at the later stage, if required.

The court is hearing a batch of petitions including the plea filed by the Supreme Court Advocates-on-Record Association (SCAORA) against the NJAC.

PTI

Bombay High Court upholds Maharashtra government’s ban on beef

Three petitions were filed challenging sections 5 (d) and 9 (a) of the Act, which prohibit possession and consumption of meat of cow, bulls and bullocks even if the animals have been slaughtered outside Maharashtra.

The Bombay High Court on Wednesday upheld Maharashtra government’s ban on beef. However, it directed the government not to take any coercive steps for its possession for the next three months. A division bench headed by Justice V M Kanade was of the view that no stay can be given until the final hearing of a bunch of petitions challenging the beef ban which was fixed on June 25.The court asked the state government to file a detailed affidavit on the issue within four weeks and allowed the petitioners and intervenors to file rejoinders two weeks thereafter.<!– Dna_Article_Middle_300x250_BTF –>In another development, the court directed the state not to take any coercive action till pendency of petitions or three months against traders who have been found in possession or transportation of beef.”This is because the Act had been introduced suddenly and reasonable time was not given to the traders to dispose of their products,” said the Judges.However, FIRs can be registered against such traders but no further action can be taken until the petitions are decided finally or three months whichever is earlier, the court said.A bunch of petitions had challenged the ban by government on consumption and possession of meat of slaughtered cows, bulls and bullocks.The Maharashtra Animal Preservation (Amendment) Act, enforced last month by the state government, bans slaughter of cows, bulls and bullocks and also consumption and possession of their meat.Three petitions were filed challenging sections 5 (d) and 9 (a) of the Act, which prohibit possession and consumption of meat of cow, bulls and bullocks even if the animals have been slaughtered outside Maharashtra.Also read: Anti-beef ban rally in Mumbai on May 5According to the petitions, this puts a ban on import of meat. The petitions had sought a stay on these sections. Senior counsel Aspi Chinoy, appearing for one of the petitioners, had argued that such a ban on consumption was violative of the fundamental right of a person to have his choice of food.”Five states in India, including Uttar Pradesh, Punjab and Haryana, have permitted import of beef despite a ban on slaughter of those animals. And in these states passion go high in such matters but it is still allowed,” Chinoy had said.Advocate General Sunil Manohar had, however, argued that consumption of beef is not a fundamental right of a citizen and the state government can regulate a person’s fundamental right to have his choice of food.”It is not a fundamental right of a citizen to eat beef. It cannot be said that the government cannot take away these rights. The state legislation can regulate consumption of flesh of any animal the source of which is reprehensible.Under the Animal Protection Act, there is a prohibition on consumption of wild boar, deer and other animals,” he argued.

Consensual sex cannot be termed rape, says Bombay High Court

Men get right to do whatever they want without any liability. The state government should find remedy for such instances. Otherwise men will get away with anything.

Representational Image

The Bombay high court has said that if a woman willingly has sexual relationship with a married man, then she cannot cry rape if he refuses to marry her. Expectedly, the decision has women activists up in arms.A division bench of justices Ranjit More and Anuja Prabhudessai quashed a rape complaint against a man observing, “The petitioner (woman) is an adult and was well aware that the respondent no.6 (man) is a married.Despite knowing this, the petitioner had accompanied the respondent no.6 at several places and had sexual intercourse with him without there being any misconception of any fact. In our considered view, the FIR does not prima facie disclose that the respondent no.6 had made false promise of marriage solely with an intention of satisfying his lust or that he had cheated or deceived the petitioner.” The judges said the material on record indicates that this was a case of “consensual sex” and hence it does not constitute offence of rape.The HC was hearing a petition by a woman seeking quashing of her rape complaint saying a settlement has been reached. She had also sought quashing of a kidnapping complaint lodged against her by the man’s wife.Adv Mahesh Vaswani, who represented the woman, said she had lodged a complaint with the Cuffe Parade police station on July 22, 2014, alleging rape and molestation. The woman, who an employee at the man’s firm, said in the FIR that she was aware about his marriage. In June 2013, she accompanied him to Goa where they got physical. The complainant said she was in love with him. She alleged that he had promised to divorce his wife and marry her. He, however, later refused to marry her and also dismissed her from service.The judges observed that rape was a serious offence and a crime against society and hence a complaint to this effect cannot be quashed easily. “However, if the allegations in the FIR do not justify registration of a rape case and the chances of conviction are remote and bleak, it would be permissible for the Court (HC) to accept the plea of settlement and quash the complaint,” added the judges.Adv Niranjan Mundargi, who represented the couple, said the wife had also lodged an FIR against the woman for kidnapping of their son with the Malabar Hill police station in June 2014. Besides, both the parties had filed cross complaints alleging criminal intimidation by the other side. A complaint in that regard was lodged with the Bandra-Kurla police station in June 2014.Additional public prosecutor Jayesh Yagnik, appearing for the state government, said they did not have any objection to the quashing of the complaints. The judges have, however, asked all the three persons to pay cost of Rs5,000 each to Tata Memorial Cancer Hospital as a charity.Noted advocate Flavia Agnes said by such orders, men get right to do whatever they want without any liability. “The state government should find remedy for such instances. Otherwise men will get away with anything. Despite being married does he have right to sleep with other women, she asked adding it is unfortunate that women too fall for such ploys.Susieben Shah, former chairperson of Maharashtra State Commission for Women said it was a sad situation where women have to face more humiliation. “Women must keep in mind that men usually do not abandon their wife and children in Indian society. Women too must maintain their self-respect and care about the other women (wife in this case),” said Shah.

Supreme Court declines urgent hearing of plea for quashing of National Judicial Appointments Commission Act

The Supreme Court on Monday declined urgent hearing of a plea seeking quashing of the National Judicial Appointments Commission (NJAC) Act which ends the two-decade-old collegium system of judges themselves selecting and appointing judges for higher judiciary.”There is no urgency. This will come in the usual course,” a three-judge bench headed by Chief Justice H L Dattu said, when senior advocate Bhim Singh mentioned the matter and sought an urgent hearing.The petition filed in the Supreme Court yesterday challenging the legality and constitutional validity of the NJAC Act, 2014 and the Constitution (121st Amendment) Bill, 2014, came barely a week after President Pranab Mukherjee accorded assent to them.The plea filed by Singh, who is also the chief of Jammu and Kashmir National Panthers Party, termed them as illegal, arbitrary and unconstitutional.It contended that the new system will result in excessive dominance of the executive in appointment of judges to the superior judiciary and recommendation of the Chief Justice of India would be reduced to mere suggestion.The plea said the new process is likely to jeopardise the appointment of judges in higher courts resulting in further delay in rendering justice to the common people.The senior advocate challenged the legality and constitutional validity of the NJAC Act saying that it is violative of Articles 14 and 21 and other provisions of the Constitution and the foundation for the principle of judicial independence.The petition said that on December 31, 2014, President of India has given his assent to two bills including, the NJAC Bill, 2014 and the constitution (121 Amendment) Bill, 2014 and “the aforesaid two Acts have caused excessive dominance of the executive in the mater of appointment of judges to the superior judiciary as well as in the formation of its structural composition discarding the opinion of Chief Justice of India.”

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