by N. Vijayaraghavan.The twists and turns relating to the National Judicial Appointments Commission Act, 2015 matter before the Supreme Court are quite amazing and at times alarming too..Fundamentally, the battle lines appear to be drawn clearly – between the Bench on side, which still seems to be swearing by the Collegium – and the entire array of lawyers on the other, unanimously mouthing that the Collegium in precept and the practice has proved to be bad. More importantly, Mr. Fali S.Nariman, the Senior Advocate leading the challenge on unconstitutionality of NJAC, has himself been a vocal critic of the Collegium system as practiced in the past 22 years. He had even bemoaned in his autobiography that he singularly regretted winning the Second Judges case, which ushered in the Collegium..The Attorney General is aggressively leading the charge, defending the Constitutional amendment and NJAC legislation. He has been quite open, direct and scathing in his dismissive approach to the “gone and buried Collegium”. He has made it clear that there is and can be no doubt whatsoever that the NJAC is now the law of the land and the Collegium is not any more in vogue, even in the interregnum. The battery of Senior Advocates joining the Attorney General, representing the States, have also concurred and submitted that the Collegium is now “a thing of the past” and no one mourns or should mourn its demise. On this, the petitioners’ counsel are also on the same page in conceding that the Collegium system deserved to go and its demise is not exaggerated. They only contend that the replacement in NJAC is unconstitutional..Thus, from those arguing the case, on either side, there is total convergence that the Collegium is a thing of the past. From the exchanges, as reported in news reports, it would appear that the Bench is now in a quandary as to the lineup of its robed brethren, on either side of the divide, soundly and roundly condemning the Collegium which they now say “was good in concept and drew high praise but faulty in implementation”..Even this appears to be a huge concession considering the openly defiant observations by the Bench when the proceedings commenced. The Bench was questioning the Attorney General when he called the Collegium a uniquely Indian formulation, and it was unheard of anywhere else in the world of “judges appointing judges”..The ordinary man on the street may see and hear the direction of the wind in such oral exchanges in Court. But the trained and initiated would not fall for the bait, for such exchanges are intended to get the best out of the lawyers and judges always provoke and play the devil’s advocate so that they have the best version and vision for resolving the lis. But this cause is being heard over several weeks and the exchanges seem to be unidirectional. The Bench is expressing a view that after all, the Collegium was not the ‘beast’ that the Counsel are seeking to portray it as, but a well-oiled machine which went wrong on a few occasions..More importantly, according to the Bench, the Collegium has stood up to the test of judicial independence as a bulwark of the Basic Structure of our Constitution. The advocates on both sides of the divide have differed and submitted that what the Collegium set out to achieve in precept, it never did and the harm and damage to the dispensation of justice may take years to repair. The politicos who were earlier hesitant to take on the Collegium were emboldened to act as one, to pass the constitutional amendment and the NJAC. That they could do so was primarily due to the universally accepted dictum that the Collegium had miserably failed and its proceedings were opaque, the country’s ‘best kept secret’ (as retired judge Ruma Pal beautifully put it)..Now, the proceedings would suggest that the Bench is almost a ‘party’ to the litigation. They were the only ones defending the Collegium and now if they were to declare NJAC as bad, then by the Doctrine of Revival, the Collegium would be back in its place. And even if they ruled the Constitutional amendment as being ultra vires for infringing on the Basic Structure of the Constitution, the Collegium would be back. This, the lawyers are seen to be protesting as not correct or proper or permissible..The “direction of the wind” as a US Supreme Court judge put while discussing the Obamacare hearings, now points to the possibility of NJAC being negated as illegal on the ground of ‘vagueness’ or the Constitutional amendment itself being ruled to be upsetting of the Basic Structure. Real and live possibility, it is now and no longer in the realm of mere speculation. One is wary of second guessing such verdicts, but then the academia is meant to think such causes out loud, which matter to the nation’s very core, the Constitutional and democratic ethos, which encourage public debate. ‘What if’ is not empty rhetoric but part of the exchanges now ‘heard’ from the hearings itself, as the arguments are winding down to a close..The Bench seems to suggest that the Collegium has to be back as there cannot be a vacuum. Now, the Collegium may have gone as NJAC has been legislated. But what if the NJAC goes? The present challenge is being heard by 5 Judges and not 11 as sought for by the Attorney General and few others. The earlier rulings in the Second and Third judges case being by 9 Judges, may be law binding under Art. 141 of the Constitution of India. Is it so simple? A mouth watering decision or prospect is round the bend and one cannot wait to have the answers from the pulpit..But what strikes one, as a Constitutional law student, is that this litigation has now transformed into one of the Bench defending their own decisions ushering in Collegium versus the entire gamut of lawyers urging before them dissenting with this view..As a mischievous wag said, “The Bench seems unwilling to let go the Collegium and seems to betting on its revival”. That may not be a fair comment considering the noble positions they occupy and are now presiding over. But the ‘exchanges’ in Court and the ‘direction of the wind’ do lend credence. Do they? You be the Judge..(The author is a practicing advocate of the Madras High Court)
by N. Vijayaraghavan.The twists and turns relating to the National Judicial Appointments Commission Act, 2015 matter before the Supreme Court are quite amazing and at times alarming too..Fundamentally, the battle lines appear to be drawn clearly – between the Bench on side, which still seems to be swearing by the Collegium – and the entire array of lawyers on the other, unanimously mouthing that the Collegium in precept and the practice has proved to be bad. More importantly, Mr. Fali S.Nariman, the Senior Advocate leading the challenge on unconstitutionality of NJAC, has himself been a vocal critic of the Collegium system as practiced in the past 22 years. He had even bemoaned in his autobiography that he singularly regretted winning the Second Judges case, which ushered in the Collegium..The Attorney General is aggressively leading the charge, defending the Constitutional amendment and NJAC legislation. He has been quite open, direct and scathing in his dismissive approach to the “gone and buried Collegium”. He has made it clear that there is and can be no doubt whatsoever that the NJAC is now the law of the land and the Collegium is not any more in vogue, even in the interregnum. The battery of Senior Advocates joining the Attorney General, representing the States, have also concurred and submitted that the Collegium is now “a thing of the past” and no one mourns or should mourn its demise. On this, the petitioners’ counsel are also on the same page in conceding that the Collegium system deserved to go and its demise is not exaggerated. They only contend that the replacement in NJAC is unconstitutional..Thus, from those arguing the case, on either side, there is total convergence that the Collegium is a thing of the past. From the exchanges, as reported in news reports, it would appear that the Bench is now in a quandary as to the lineup of its robed brethren, on either side of the divide, soundly and roundly condemning the Collegium which they now say “was good in concept and drew high praise but faulty in implementation”..Even this appears to be a huge concession considering the openly defiant observations by the Bench when the proceedings commenced. The Bench was questioning the Attorney General when he called the Collegium a uniquely Indian formulation, and it was unheard of anywhere else in the world of “judges appointing judges”..The ordinary man on the street may see and hear the direction of the wind in such oral exchanges in Court. But the trained and initiated would not fall for the bait, for such exchanges are intended to get the best out of the lawyers and judges always provoke and play the devil’s advocate so that they have the best version and vision for resolving the lis. But this cause is being heard over several weeks and the exchanges seem to be unidirectional. The Bench is expressing a view that after all, the Collegium was not the ‘beast’ that the Counsel are seeking to portray it as, but a well-oiled machine which went wrong on a few occasions..More importantly, according to the Bench, the Collegium has stood up to the test of judicial independence as a bulwark of the Basic Structure of our Constitution. The advocates on both sides of the divide have differed and submitted that what the Collegium set out to achieve in precept, it never did and the harm and damage to the dispensation of justice may take years to repair. The politicos who were earlier hesitant to take on the Collegium were emboldened to act as one, to pass the constitutional amendment and the NJAC. That they could do so was primarily due to the universally accepted dictum that the Collegium had miserably failed and its proceedings were opaque, the country’s ‘best kept secret’ (as retired judge Ruma Pal beautifully put it)..Now, the proceedings would suggest that the Bench is almost a ‘party’ to the litigation. They were the only ones defending the Collegium and now if they were to declare NJAC as bad, then by the Doctrine of Revival, the Collegium would be back in its place. And even if they ruled the Constitutional amendment as being ultra vires for infringing on the Basic Structure of the Constitution, the Collegium would be back. This, the lawyers are seen to be protesting as not correct or proper or permissible..The “direction of the wind” as a US Supreme Court judge put while discussing the Obamacare hearings, now points to the possibility of NJAC being negated as illegal on the ground of ‘vagueness’ or the Constitutional amendment itself being ruled to be upsetting of the Basic Structure. Real and live possibility, it is now and no longer in the realm of mere speculation. One is wary of second guessing such verdicts, but then the academia is meant to think such causes out loud, which matter to the nation’s very core, the Constitutional and democratic ethos, which encourage public debate. ‘What if’ is not empty rhetoric but part of the exchanges now ‘heard’ from the hearings itself, as the arguments are winding down to a close..The Bench seems to suggest that the Collegium has to be back as there cannot be a vacuum. Now, the Collegium may have gone as NJAC has been legislated. But what if the NJAC goes? The present challenge is being heard by 5 Judges and not 11 as sought for by the Attorney General and few others. The earlier rulings in the Second and Third judges case being by 9 Judges, may be law binding under Art. 141 of the Constitution of India. Is it so simple? A mouth watering decision or prospect is round the bend and one cannot wait to have the answers from the pulpit..But what strikes one, as a Constitutional law student, is that this litigation has now transformed into one of the Bench defending their own decisions ushering in Collegium versus the entire gamut of lawyers urging before them dissenting with this view..As a mischievous wag said, “The Bench seems unwilling to let go the Collegium and seems to betting on its revival”. That may not be a fair comment considering the noble positions they occupy and are now presiding over. But the ‘exchanges’ in Court and the ‘direction of the wind’ do lend credence. Do they? You be the Judge..(The author is a practicing advocate of the Madras High Court)
