The Narendra Modi government today told the Supreme Court that the National Judicial Appointment Commission (NJAC) for appointments to higher judiciary had a component of a “hit and trial” experiment for finding the best people for the posts.
Contending that there was an element of uncertainty in every new experiment, Attorney General Mukul Rohatgi told the constitution bench of Justice JS Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel that similarly there was “hit and trial” component in the NJAC
Urging the court that the NJAC should be given a chance to have its run before being subjected to any critical evaluation, Rohatgi said “God knows” what would eventually emerge from it in terms of selection of judges.
But the court was not convinced.
“Only problem is that we can’t leave it to God. It is not a hit and trial business,” the court told Rohatgi reminding him that it was too serious an issue to be left to “hit and trial” or “God”.
At this, Rohatgi said: “If there could be hit and trial for democracy, hit and trial for secularism, hit and trial for federalism, then why not judiciary. Hit and trial is a part of democracy.”
Attacking the collegium system of appointment as being devoid of “transparency, rules and guidelines and something happening in a closed room away from sunlight”, he however said the blame for the system’s failure lay at the doorsteps of the government, but sought to know if this still prevented the parliament from putting in place a “broad-based, healthier, transparent” NJAC
At this, the court asked him to give it the names of the people who were “good” and were recommended for appointment to higher judiciary by the government but were not accepted by the collegium.
“Show us one incident, where there was a good material (name recommended). You (government) projected that material and sent it to collegium and it was returned,” it said.
Justice Kurian once again asked Rohatgi to furnish the list of the people recommended by the Collegium for appointment but returned by the government for reconsideration and the collegium again reiterated the names.
Its query came while addressing the contention that under the collegium system - also known as judges appointing judges - the government has no voice and there was give and take amongst the judges involving “you scratch my back, I will scratch yours” in a closed room without sunlight.
Referring to an instance where after receiving a positive report on the credentials of a person recommended for appointment as judge by the collegium, the government sought another report from the Intelligence Bureau, the court asked: “What is the question or the occasion (for the government) to ask for the second opinion (of the IB)… we want to know the working of the system.”
“It is a question of the working of a system,” the court told the Attorney General as he reiterated his submission that “once a new system (for judges’ appointment) comes, it is not in the provinces of the judiciary to decide on its validity on the basis of comparison with other models (collegium system)”.
The court is hearing a batch of petitions including one by the Supreme Court Advocates on Record Association (SCAORA) along with the Bar Association of India, NGO Centre for Public Interest Litigation and others challenging the constitutional validity of the constitution’s Ninety Nine Amendment Act, 2014 and NJAC Act, 2014.
The Attorney General will continue with his arguments on Wednesday.
Comments
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."
See http://nigeria.gounna.com/show/show/101239/1
But at least in Nigeria they are talking about it openly.
See http://amit-thadhani.blogspot.in/2014/07/collegium-system-another-word-for.html for 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 Courthttp://www.nedumpara.com/campaign2.html
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?