The Supreme Court of India.Even as the sub-continent continues to reel under a relentless summer, a more sizzling battle will resume on June 8 in the Supreme Court of India – a battle which might have far reaching implications on the system which was put in place in 1950 by a written document, the largest of its kind in the world..The Union of India through three of its foremost lawyers, will be defending the Constitutional validity of the National Judicial Appointments Commission (NJAC) before a Constitution Bench of the Supreme Court..Union’s Lawyers.The three member legal team entrusted with the task of defending the NJAC is comprised of Attorney General Mukul Rohatgi (AG), Solicitor General Ranjit Kumar and Additional Solicitor General PS Narasimha..Attorney General Mukul Rohatgi.Mukul Rohatgi is the “King of Miscellaneous days”. Known for his skills in. convincing the Bench by breaking down even the most complex legal questions into concise and simple arguments, Rohatgi’s persuasiveness has swayed the Bench many a time in getting seemingly meritless cases admitted to the Supreme Court. It is no surprise that the Bench indulges him on miscellaneous days when the Board is heavy and judges are in a “hurry”..His arguments to get the NJAC matter transferred to a larger Bench were widely appreciated though it did not bear fruition. The NJAC case is without doubt the most important case argued by him till date..Solicitor General Ranjit Kumar.Like his team leader, Ranjit Kumar is vociferous and persuasive. Kumar is regularly seen defending the Central government in crucial cases and he along with the Attorney General would be making the bulk of the oral submissions in the NJAC case..Additional Solicitor General PS Narasimha.The Additional Solicitor General is one of the most articulate of the Senior Advocates in the Supreme Court. Mild mannered and friendly outside the Court, Narasimha is widely admired for his eloquence and lucid arguments in the court. He has been tasked with many important cases by the Centre after he was appointed an ASG. With a strong grounding on jurisprudence, Narasimha’s inputs in the case is being viewed as crucial to the outcome of the case..As it stands today.The case is a batch of writ petitions filed by different petitioners including the Supreme Court Advocates-on-Record Association, ex-ASG Bishwajit Bhattacharya, Centre for PIL etc..First part of the battle was a long drawn affair. The matter had initially come up before a three judge Bench which had referred it to a Constitution Bench. The Constitution Bench then admitted the matter and the petitioners argued their case assailing the Constitutionality of the NJAC on the ground of violating independence of judiciary..When Centre began its arguments, it sought for referring the case to a 11 judge Bench on the ground that Second judges case, which was decided by 9 judges, has to be reconsidered and the same can be done only by a Bench larger than 9. The Court after hearing the Centre on this issue ruled that the Constitution Bench will continue to hear the case. It, however, did not completely rule out the possibility of reconsidering the Second Judges case though it held that the same won’t be taken up as a “preliminary issue”. This would mean that the issue has been left open and could be considered a later stage..Below is a timeline of events pertaining to NJAC in the Supreme Court..August 2015: Anti-NJAC PIL galore in Supreme Court as AoR Association, ex-ASG and others file petitions challenging Constitutionality of NJAC..August 25, 2014: Supreme Court refuses to entertain the challenge to NJAC on the ground that it is pre-mature..December 31, 2014: President Pranab Mukherjee gives assent to the Constitution (121st Amendment) Bill, 2014..January 2015: NJAC challenge revives in Supreme Court; AoR Association, Senior Advocates file petitions..March 10, 2015: Hearing in NJAC challenge commences before a three judge Bench of the Supreme Court presided by Justice Anil R Dave..April 7, 2015: Three judge Bench refers the case to a Constitution Bench..April 13, 2015: Government notifies the NJAC Act and the Constitutional Amendment Act thereby replacing the Collegium system..April 15, 2015: Matter comes up before the Constitution Bench; Justice Anil R Dave recuses..April 16, 2015: Justice JS Khehar takes the place of Justice Anil R Dave as the presiding judge in the case..April 21, 2015: Petitioners object to Justice JS Khehar hearing the case..April 22, 2015: Supreme Court admits anti-NJAC petitions; Justice Khehar decides to continue hearing the case..April 27, 2015: CJI Dattu writes to Prime Minister Narendra Modi; says he won’t attend the proceedings to select two “eminent persons” for the NJAC..May 5, 2015: Centre commences arguments; Rohatgi insists on overruling Second Judges case, argues for referring the matter to a 11 judge Bench before arguing on the Constitutionality of NJAC..May 12, 2015: Supreme Court decides it will hear the case on merits, posts the case for June 8; refuses to revisit the Second judges case as a preliminary issue..Why is the case important?.The decision in this case will be a pronouncement on one of the most important features of our democracy – the separation of powers and judicial independence. There have only been a handful of instances wherein the Supreme Court has sat in interpretation over judicial appointments. It happened once in the 80s and twice in the 90s. So this 2015 case unarguably belongs to a rare genus..In 1993, when the Supreme Court sat in judgment over its 1981 judgment and chose to overrule it, the result was one of the most bizarre interpretations of the Constitution. Article 124 of the Constitution was given a whole new meaning by the Second Judges case and the Collegium system came into existence. The NJAC seeks to do away with the Collegium by establishing a 6 member body to take over the task of appointing judges of High Courts and the Supreme Court..From a layman’s perspective, the issue is whether the NJAC is a scheme devised by the executive to fill up higher judiciary with “convenient judges” or not..But the case is much more than that. The challenge to NJAC in the Supreme Court assumes significance because it will be decided independent of what has been laid down in the Second Judges case. This would mean that the test might not be whether NJAC infringes “primacy of CJI” with respect to judicial appointments or not; it might be a broader test – whether executive say in judicial appointments affects independence of judiciary and hits the doctrine of separation of powers. If the answer is yes, then the government will have to start from the scratch. Needless to say, the Collegium will spring back to life till the Parliament comes up with something new. However, if the NJAC passes the test, then the question mark of over Second Judges case will persist..The confusion.The Second Judges case interpreted Article 124 to mean that “consultation” with Chief Justice of India (CJI) means “consent” and primacy with respect to judicial appointments to higher judiciary rests with the CJI. Now that Article 124 has been amended and Article 124A has been inserted, the question is whether the Second Judges case has also been wiped out along with it or whether the proposition of “primacy with the CJI” is a ratio which will stand till the Second Judges case is expressly overruled by the Supreme Court itself..AG Mukul Rohatgi argued that the challenge should be referred to a 11 judge Bench so that the Second Judges case can be overruled. He contended that the Constitution never intended to give primacy to the CJI and the Second Judges case was wrongly decided. However, he also argued that the Second Judges case has been wiped out by the insertion of Article 124A. Fali Nariman cashed in on this discrepancy and said that the AG cannot make both the arguments..“If you are asking for reference to larger Bench, it means you accept that the Second Judges case still stands. But you also contend that the Second Judges cases has been wiped out by Article 124A. You can’t take both the stands”, said Nariman..In the end, the Court decided that the Constitution Bench will continue to hear the case. It has, however, left the issue of Second Judges case open while stating that it won’t be considered as a preliminary issue. Now, if the Court upholds the Constitutionality of NJAC, would this mean that the NJAC does not take away primacy of the CJI with respect to judicial appointments since the Second Judges case has not been expressly overruled. Or has Article 124A wiped out the Second Judges case so that it does not require an express overruling? These questions might persist even after the judgment is pronounced by the Constitution Bench since the Court has decided not to delve into the Second Judges case as a preliminary issue. Reconsidering and pronouncing upon the status of Second Judges case later on by a larger Bench will end up wasting the time of the Court; something which could have been avoided by referring the case to a 11 judge Bench to decide all these allied issues in a single go..Read a roundup of the legal arguments of different petitioners here.
The Supreme Court of India.Even as the sub-continent continues to reel under a relentless summer, a more sizzling battle will resume on June 8 in the Supreme Court of India – a battle which might have far reaching implications on the system which was put in place in 1950 by a written document, the largest of its kind in the world..The Union of India through three of its foremost lawyers, will be defending the Constitutional validity of the National Judicial Appointments Commission (NJAC) before a Constitution Bench of the Supreme Court..Union’s Lawyers.The three member legal team entrusted with the task of defending the NJAC is comprised of Attorney General Mukul Rohatgi (AG), Solicitor General Ranjit Kumar and Additional Solicitor General PS Narasimha..Attorney General Mukul Rohatgi.Mukul Rohatgi is the “King of Miscellaneous days”. Known for his skills in. convincing the Bench by breaking down even the most complex legal questions into concise and simple arguments, Rohatgi’s persuasiveness has swayed the Bench many a time in getting seemingly meritless cases admitted to the Supreme Court. It is no surprise that the Bench indulges him on miscellaneous days when the Board is heavy and judges are in a “hurry”..His arguments to get the NJAC matter transferred to a larger Bench were widely appreciated though it did not bear fruition. The NJAC case is without doubt the most important case argued by him till date..Solicitor General Ranjit Kumar.Like his team leader, Ranjit Kumar is vociferous and persuasive. Kumar is regularly seen defending the Central government in crucial cases and he along with the Attorney General would be making the bulk of the oral submissions in the NJAC case..Additional Solicitor General PS Narasimha.The Additional Solicitor General is one of the most articulate of the Senior Advocates in the Supreme Court. Mild mannered and friendly outside the Court, Narasimha is widely admired for his eloquence and lucid arguments in the court. He has been tasked with many important cases by the Centre after he was appointed an ASG. With a strong grounding on jurisprudence, Narasimha’s inputs in the case is being viewed as crucial to the outcome of the case..As it stands today.The case is a batch of writ petitions filed by different petitioners including the Supreme Court Advocates-on-Record Association, ex-ASG Bishwajit Bhattacharya, Centre for PIL etc..First part of the battle was a long drawn affair. The matter had initially come up before a three judge Bench which had referred it to a Constitution Bench. The Constitution Bench then admitted the matter and the petitioners argued their case assailing the Constitutionality of the NJAC on the ground of violating independence of judiciary..When Centre began its arguments, it sought for referring the case to a 11 judge Bench on the ground that Second judges case, which was decided by 9 judges, has to be reconsidered and the same can be done only by a Bench larger than 9. The Court after hearing the Centre on this issue ruled that the Constitution Bench will continue to hear the case. It, however, did not completely rule out the possibility of reconsidering the Second Judges case though it held that the same won’t be taken up as a “preliminary issue”. This would mean that the issue has been left open and could be considered a later stage..Below is a timeline of events pertaining to NJAC in the Supreme Court..August 2015: Anti-NJAC PIL galore in Supreme Court as AoR Association, ex-ASG and others file petitions challenging Constitutionality of NJAC..August 25, 2014: Supreme Court refuses to entertain the challenge to NJAC on the ground that it is pre-mature..December 31, 2014: President Pranab Mukherjee gives assent to the Constitution (121st Amendment) Bill, 2014..January 2015: NJAC challenge revives in Supreme Court; AoR Association, Senior Advocates file petitions..March 10, 2015: Hearing in NJAC challenge commences before a three judge Bench of the Supreme Court presided by Justice Anil R Dave..April 7, 2015: Three judge Bench refers the case to a Constitution Bench..April 13, 2015: Government notifies the NJAC Act and the Constitutional Amendment Act thereby replacing the Collegium system..April 15, 2015: Matter comes up before the Constitution Bench; Justice Anil R Dave recuses..April 16, 2015: Justice JS Khehar takes the place of Justice Anil R Dave as the presiding judge in the case..April 21, 2015: Petitioners object to Justice JS Khehar hearing the case..April 22, 2015: Supreme Court admits anti-NJAC petitions; Justice Khehar decides to continue hearing the case..April 27, 2015: CJI Dattu writes to Prime Minister Narendra Modi; says he won’t attend the proceedings to select two “eminent persons” for the NJAC..May 5, 2015: Centre commences arguments; Rohatgi insists on overruling Second Judges case, argues for referring the matter to a 11 judge Bench before arguing on the Constitutionality of NJAC..May 12, 2015: Supreme Court decides it will hear the case on merits, posts the case for June 8; refuses to revisit the Second judges case as a preliminary issue..Why is the case important?.The decision in this case will be a pronouncement on one of the most important features of our democracy – the separation of powers and judicial independence. There have only been a handful of instances wherein the Supreme Court has sat in interpretation over judicial appointments. It happened once in the 80s and twice in the 90s. So this 2015 case unarguably belongs to a rare genus..In 1993, when the Supreme Court sat in judgment over its 1981 judgment and chose to overrule it, the result was one of the most bizarre interpretations of the Constitution. Article 124 of the Constitution was given a whole new meaning by the Second Judges case and the Collegium system came into existence. The NJAC seeks to do away with the Collegium by establishing a 6 member body to take over the task of appointing judges of High Courts and the Supreme Court..From a layman’s perspective, the issue is whether the NJAC is a scheme devised by the executive to fill up higher judiciary with “convenient judges” or not..But the case is much more than that. The challenge to NJAC in the Supreme Court assumes significance because it will be decided independent of what has been laid down in the Second Judges case. This would mean that the test might not be whether NJAC infringes “primacy of CJI” with respect to judicial appointments or not; it might be a broader test – whether executive say in judicial appointments affects independence of judiciary and hits the doctrine of separation of powers. If the answer is yes, then the government will have to start from the scratch. Needless to say, the Collegium will spring back to life till the Parliament comes up with something new. However, if the NJAC passes the test, then the question mark of over Second Judges case will persist..The confusion.The Second Judges case interpreted Article 124 to mean that “consultation” with Chief Justice of India (CJI) means “consent” and primacy with respect to judicial appointments to higher judiciary rests with the CJI. Now that Article 124 has been amended and Article 124A has been inserted, the question is whether the Second Judges case has also been wiped out along with it or whether the proposition of “primacy with the CJI” is a ratio which will stand till the Second Judges case is expressly overruled by the Supreme Court itself..AG Mukul Rohatgi argued that the challenge should be referred to a 11 judge Bench so that the Second Judges case can be overruled. He contended that the Constitution never intended to give primacy to the CJI and the Second Judges case was wrongly decided. However, he also argued that the Second Judges case has been wiped out by the insertion of Article 124A. Fali Nariman cashed in on this discrepancy and said that the AG cannot make both the arguments..“If you are asking for reference to larger Bench, it means you accept that the Second Judges case still stands. But you also contend that the Second Judges cases has been wiped out by Article 124A. You can’t take both the stands”, said Nariman..In the end, the Court decided that the Constitution Bench will continue to hear the case. It has, however, left the issue of Second Judges case open while stating that it won’t be considered as a preliminary issue. Now, if the Court upholds the Constitutionality of NJAC, would this mean that the NJAC does not take away primacy of the CJI with respect to judicial appointments since the Second Judges case has not been expressly overruled. Or has Article 124A wiped out the Second Judges case so that it does not require an express overruling? These questions might persist even after the judgment is pronounced by the Constitution Bench since the Court has decided not to delve into the Second Judges case as a preliminary issue. Reconsidering and pronouncing upon the status of Second Judges case later on by a larger Bench will end up wasting the time of the Court; something which could have been avoided by referring the case to a 11 judge Bench to decide all these allied issues in a single go..Read a roundup of the legal arguments of different petitioners here.
