SC Exposes 'Tyranny Of The Elected'
Senior Advocate Dushyant Dave had argued passionately in favour of the Judicial Appointments Commission before the Supreme Court, notes Justice J.S. Kehar in his ruling. The judge, however, went on to record that when the counsel was asked whether the President of the Supreme Court Bar Association ( which Dave is at present) or the chairman of the Bar Council of India would merit a place in the Commission as 'eminent people', Mr Dave's instant reaction was that it would be 'disastrous'.
While ruling against the NJAC as bad in law and unconstitutional, Justice Kehar dwells at length on the composition of the NJAC which, as per the Bill passed by Parliament, was to comprise the Chief Justice of India, two senior most judges of the Supreme Court, the Union Law Minister and two 'eminent people' chosen by the PM, leader of the opposition in the Lok Sabha etc.
The court felt that since the Act also provided that two of these six members of the NJAC could veto any appointment, it was possible for the two 'eminent people' or one of them in collusion with the minister to stall an appointment favoured by the CJI and the two other judges. This was not only bad law but also undermined the Independence of the Judiciary. Indeed it would also be possible for the two 'eminent people' to go against the view of the four other members of the Commission.
And yet the law laid down no qualification or disqualification for the two eminent people to be nominated. The Attorney General, the judge noted, argued that the two members thus nominated would actually be 'lay men' with no connection to the judiciary or the legal profession. The Attorney General took the high ground to argue that even ordinary citizens could play a role in the appointment and transfer of high court judges. Justice Kehar noted that the counsel for the state of Maharashtra argued differently and claimed that the two eminent people would actually be eminent jurists, law teachers and even retired judges. Highlighting the contradictory stands of the two counsels, Justice Kehar found the provision unacceptable.
Indeed a Government which finds an average actor like Gajendra Chouhan fit to be the chairman of the Film & Television Institute of India, the judge argues, can scarcely be trusted with the selection of the two eminent people as members of the NJAC. What is left unsaid in the judgment is what would prevent the nomination of Sachin tendulkar, Amitabh Bachchan or Hema Malini as members of the Commission and whether these eminent people could be trusted with the appointment of judges.
In the NJAC proposed by Parliament, the Chief Justice of India would have been just one of the six members. He would have forfeited the right to either initiate the appointment of a judge or even convene the meeting of the NJAC. Nor was the CJI allowed a casting vote in case of a tie. Justice Kehar noted that under the scheme, the Chief Justice of India could be outvoted by a majority or his nominee could be vetoed by others. This would undermine the authority of the CJI and lead to a breakdown of the judicial process, the ruling rightly feared.
Justice Kehar also notes that the Parliament provided no 'quorum' for meetings of the NJAC. The omission, he concurred with the petitioners, did not appear to be an innocent lapse because the Law Ministry in the same session of Parliament had placed a Bill on Goods & Services Tax which provided for a council and a quorum for its meetings.
What's more, the NJAC Act passed by Parliament ominously laid down that while the Commission would appoint the senior-most judge of the Supreme Court as the Chief Justice of India, it would be subject to he being deemed 'fit' by the Commission. While the Attorney General argued that there was nothing sinister in the provision and that what was meant was that the judge should be 'physically and mentally fit', the judge was not convinced that the goal post would not be shifted as per the convenience of the executive.
The NJAC Act also provided that the appointment of judges as the CJI would take into consideration their remaining tenure and if it were to be less than two years, the judge would not be eligible to be elevated as CJI. The ruling records that only 12 of the 41 Chief Justices of India have had tenures of more than two years. Justice Kehar also points out that since high court judges are appointed in batches and often within weeks or months of the preceding batch, a mechanical consideration of their seniority would leave out several deserving judges.
If the NJAC were to function, these infirmities first need to be corrected. And as the ruling points out, the manner of functioning of the NJAC cannot be left to Parliament but must be laid down in the Constitution itself.
It is because the ruling is so air-tight that the Government cannot afford to file for a review by a larger bench. Which also explains why the Government has been quick in forwarding the recommendations made by the collegium to the President for his approval .
The ruling by the apex court exposes both the Government and the Parliament. While the executive is patently guilty of drafting a poor law, the Parliament failed in its duty to debate, deliberate and scrutinise the Bill before passing it. As pointed out, both the Lok Sabha and the Rajya Sabha took a day each to deliberate on the legislation. Not more than 35-40 MPs in each House would have spoken before the legislation was deemed to have been passed.
Now that it has been struck down by the Supreme Court as unconstitutional, the Parliament and the state assemblies have an opportunity to go back to the drawing board, hold consultations with stakeholders, remove the infirmities and come up with a more workable NJAC.
But if the arrogance of Mr Arun Jaitley, who has lashed out at the alleged 'tyranny of the unelected', is any indication, the Government does not appear to be in any mood for a course correction.
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To anybody who has been observing how the various organs of the Constitution have been competing with each other to cheat the people whom they were required to serve, the question 'which is the worst organ of the Constitution?' should have occurred at least once. But unfortunately I have never got a read the answer to such a question. So I tried answering it myself and here it is:
Amoung the three organs of our Constitution the law-makers are controlled by the people, bureaucracy (yes, bureaucracy, because without the active support of the bureaucracy no politician can do any wrong!) and finally the judiciary; the law-enforcers are also controlled by the law-makers and the judiciary. And then there are the ears and eyes of the people- the media waiting to sensationalize every news involving the misdemeanor of these authorities. In spite of such strict supervision and control all that we can hear these days are about politician-bureaucrat-underworld nexus even though the fact remains that none, worth the name, from this unholy nexus have ever been punished by the holier-than-thou judiciary.
So now think how bad a system can be which is not only NOT subject to supervision but also kept beyond critical observation. Well isn’t our judiciary is just that? And do I need to recapitulate that quip: power corrupts and absolute power corrupts absolutely?
In the current context we all know that the judiciary usurped the power of the Executive in 1993 and the Collegium came into existance in 1998. Now this issue of appoinment of judges, whether it is done by the Executive or the 'Collegium', is not any different from transferring elephantiasis from one leg to the other. The more important issue is of transparency and accountabilty in the functioning of the judiciary, submitting judges to the same laws as are applicable to ordinary citizens, limiting Contempt of Court to only instances of not complying with court orders and ultimalety to the framing of a Contempt of Citizen (Prevention of ) Act where by litigants summoned by courts and the cases being adjourned without being heard should invite penal action against the judge concerned!
Whose Tyranny ?
HC judge who stopped Himachal CM Virbhadra Singh arrest was his lawyer: CBI to SC - See more at: http://indianexpress.com/article/india/india-news-india/hc-judge-who-stopped-himachal-cm-virbhadra-singh-arrest-was-his-lawyer-cbi-to-sc/#sthash.AzFK0A4l.dpuf
he CBI Tuesday told the Supreme Court that the High Court judge, who stopped the agency from arresting or interrogating Himachal Pradesh Chief Minister Virbhadra Singh and his wife in a corruption case, had been a lawyer for the veteran Congress leader in the past.
Following the CBI’s allegation of conflict of interest, the Supreme Court bench of Justice F M I Kalifulla and Justice Uday U Lalit issued notices and sought to know from Singh and his wife as to why the CBI’s plea for their custodial interrogation should not be entertained.
Attorney General Mukul Rohatgi, appearing for the CBI, claimed that the Himachal Pradesh HC judge had earlier recused from hearing another case against Singh since he had represented the CM as a counsel in the past.
“This learned HC judge had refused to hear a case and it was orally stated in the court that this judge had represented Singh when he was a lawyer. This fact has been widely reported in all newspapers. So why did he hear him now and passed this extraordinary order?” asked Rohatgi, adducing a number of newspaper clippings.
s per the newspaper clippings, Justice Kurian Joseph, who was at the relevant time the chief justice of the state high court and is now a judge in the apex court, had said it in the open court that the matter had to go to some other bench since his fellow judge had informed him that Singh had been his client in the past.
The AG complained that instead of refraining from hearing this case too, the judge went on to pass an exceptional order. “We (CBI) cannot question him (Singh). cannot arrest him. cannot even investigate and file our chargesheet. How can this be allowed? The case cannot proceed without interrogating the man and the lady,” he said.
Accepting the court notice on behalf of Singh, senior advocate Kapil Sibal contested Rohatgi’s arguments, saying it was not true that the HC judge had never heard any case involving Singh. To this, Rohatgi retorted: “So this judge chooses to hear some cases and decides not to hear others. How can this be?”
Agreeing with Rohatgi, the bench said that judges’ decisions regarding recusal have to be abiding in nature. “There has to be some consistency. If you don’t want to hear a case, don’t hear it ever. It has to be abiding on oneself,” observed the bench, while issuing notices on CBI’s plea to suspend the HC order.
On October 1, the HC bench of Justice Rajiv Sharma and Justice Sureshwar Thakur had not only restrained the CBI from arresting Singh and his wife but also ordered it to neither interrogate them without its permission nor file a chargesheet in trial court.
Rohatgi also sought to transfer the case from the Himachal Pradesh HC to the Delhi HC, contending the case relating to Singh’s disproportionate assets is already being monitored by the Delhi court, where a PIL was filed in the matter. “Besides, he is the CM of the state now. And my lords have already seen the kind of order that has been passed on day one by the HC without hearing us,” he said.
The court then issued notices on the transfer petition and fixed the matter for hearing on November 5.
The case against Singh relates to alleged unaccounted money to the tune of Rs 6.10 crore, which was shown as an increase in agricultural income. Singh filed a petition in the HC pleading that the CBI raids on his private residence and other premises were conducted with “malafide intentions and political vendetta”. He had sought directions for quashing the FIR registered against him and his wife under provisions of the Prevention of Corruption Act and the IPC.''
Bakre & Bakri ki maan kab tak kjire manye gi !!
BUT THIS CASE IS FIT THE EXAMPLE AS TO WHY WE SHOUT NOT CARRY ON WITH COLLGIUM SYSTEM .
RETIRED CJI LODHA SAHIB TOO SAID THAR COLLEGIUM SYSTEM IS ''OPAQUE AND COLLEGIUM IS NOT ACCOUNTABLE FOR ITS DECISIONS though Lodha sahib wants to continue with Cllegium system.
The biggest problem is an ordinary mortal can't think of going to HC and SC.
If you wish to go to hc and sc then you must have 2 crores of Rs in your Banks and 10-20 yeras to fight out case .
Chances are still you may not get any Justice .Our Legal System is prohibitory expensive and Courts take decades to settle a case
And still your opponent has the privileged of going for an appeal .
IT IS DIFFICULT TO TRUST OUR COURTS TO GIVE YOU JUSTICE.
A CHAPRASI WHO TOOK THE BRIBE OF Rs5 0 WAS SENT TO JAIL AFTER DECADES BY THE SUPERIOR COURTS BUT CHARACTERS LALU GO TO JAIL AND COME OUT ON BAIL .
LALU
COURTS THOUGH BANNED TO FIGHT ELECTIONS BUT STILL CAN LEAD THE ALLIANCES TO FIGHT ELECTIONS IN STATES LIKE BIHAR !!
SEE THE CONVICT LALU BRAGGING AND INSULTING THE LAW OF THE LAND ON TV THESE DAYS AND TRYING TO CONTROL BIHAR !
YEH KAISA INSAAF HEIN ???
>>While ruling against the NJAC as bad in law and unconstitutional, Justice Kehar dwells at length on the composition of the NJAC which, as per the Bill passed by Parliament, was to comprise the Chief Justice of India, two senior most judges of the Supreme Court, the Union Law Minister and two 'eminent people' chosen by the PM, leader of the opposition in the Lok Sabha etc.
This para shows Uttam Sengupta's dishonesty and becomes reason enough to avoid his article. The 'eminent people' he talks about are to be chosen by PM, LOP AND the CJI! He conveniently leaves out the CJI! In this substandard article, he discusses the judgment without touching the dissenting opinion. Off course he says that the NJAC is unconstitutional without discussing Articles 124 and 217 of our constitution. With all the Uttams and the Akaars, Outlook has started digging further after hitting rock bottom.
Judiciary's warning to constitution : BE YOU EVER SO HIGH WE ARE ABOVE YOU !
ndeed a Government which finds an average actor like Gajendra Chouhan fit to be the chairman of the Film & Television Institute of India, the judge argues, can scarcely be trusted with the selection of the two eminent people as members of the NJAC. What is left unsaid in the judgment is what would prevent the nomination of Sachin tendulkar, Amitabh Bachchan or Hema Malini as members of the Commission and whether these eminent people could be trusted with the appointment of judges.''
The above shows the hollowness of the Utam Sengupta's Article and his biased analysis .
He writes as if he is drafting an Opposition Leader's Public speech .
How far more Outlook will fall ??
And I understand Utam Sengupta is an Editor of the Magzine .
Moot Question is can SC reject a Bill passed by 75 % majority of both the Houses and also passed by 22 Legislative Assemblies ??
Constitutions grants Powers to the Elected representatives & not to Judiciary to amend Constitution ..
In Fifties President in consultation with Chief Justice of India used to appoint Judges to the higher Courts .Subsequently in Eighties during Indira and Rajiv Rule -the Law Minister userped the Powers of Prez and started with consultation with CJ I to appoint the superior Judges .
In 1993 Judges Collegium system was adopted for appointments of
the Judges .
Thus Prez's power was first usurped by the Law Minister and subsequently CJI took over the powers to appoint the Judges .
Thus neither the Law Minster nor the CJI had/have the Constitutional authority to operate the Constitutional Powers to appoint judges which were granted by Constituent Assembly to Prez per Constitution .
SC judgement is not the final one yet. Natter is not settled finally yetExecutive and Judiciary will have more rounds in future of discussions and further parleys .
Neither the present Collegium system nor the operation of Powers by Legislature /Executive are perfect .
BUT YES THE Collegium SYSTEM IS PRESENTLY BETTER ONE.
BOTH SHIV SHANKAR AND BHARDAWAZ THE LAW MINISTER WERE AWFUL ONES .During Bajpaie's regime Jethmalani the Law Minister took upon one SC Judge but was restrained by the PM. In protest Jethmalani resigned as Minister.
2. Here is an good Article on the issue.
Collegium system not perfect, but superior to NJAC, says former CJI
3. I hear many times in Debates that prest Collegium syatem ha spicked up Superior Judges from the top 500 Legal Families only .
I have no idea but I see eminent Anchors saying so.