The Nation Wants to Know: “Collegium a Gymkhana club” alleges Arun Jaitley

This was no court room battle. Arnab Goswami and Times Now hit the bulls eye at an extraordinary debate at the FICCI auditorium in New Delhi yesterday afternoon..Justice RM Lodha & Rajeev Dhavan v. Arun Jaitley & Soli Sorabjee.The event provided a platform for four legal stalwarts to argue the Legislature v. Judiciary debate; the obvious catalyst being the week old Supreme Court judgment in the Fourth Judges Case striking down the National Judicial Appointments Commission..The debate was moderated by Arnab Goswami, Swapan Dasgupta and Dilip Padgaonkar. While Finance Minister and Senior Advocate Arun Jaitley and jurist and former Attorney General Soli Sorabjee opposed the judgment, ex CJI RM Lodha and Senior Advocate Rajeev Dhavan spoke in support of the verdict..The debate was peppered with personal pot shots by both Jaitley and Dhavan as Arnab Goswami, for a change, spoke very little throughout the debate..The conversation itself covered four issues:.Has the Supreme Court’s verdict rejected parliamentary sovereignty?Was the government trying to damage judicial independence?Has there been a gradual usurpation of powers by the Supreme Court?What will best serve the people of India?.The debate witnessed some particularly snide and personal remarks by Jaitley and Dhavan. While Jaitley attacked the Collegium system as a “Gymkhana club” where existing members decide whether to admit new ones, Dhavan and Lodha J. did not hide their lack of trust in the Executive..Most importantly, what emerged from the debate was that even Jatiley did concede judicial primacy for judicial appointments; he restricted himself to opposing the judiciary only on the exclusivity practised by the Supreme court while appointing judges by excluding the other wings of democracy altogether..Below are excerpts from the debate..Arun Jaitley and Rajeev Dhavan.His “tyranny of the unelected” remark on his Facebook post had received a lot of flak. He, however, clarified that,.“The Supreme Court is entitled to strike down a Constitutional Amendment, my phrase ‘tyranny of unelected’ does not mean that the Supreme Court cannot exercise judicial review.”.Dhavan did not hold back when he pointed out the fact that Jaitley himself has never won an election hinting that the “tyranny of unelected” remark would suit Jaitley..“Jab Arun Jaitley bolte hai toh mujhe bada maza aata hai aur jab woh galat bolte hai toh aur bhi maza aata hai”, said Dhavan..Dhavan said that when there is violation of liberty, a bad contract or a restraint on free speech, the people of the country turn to the judiciary..Jaitley retorted by saying that Dhavan lives in a “fictional world”. He then went on to talk about the Emergency, when the judiciary turned away the detenues in the ADM Jabalpur case..“Rajeev lives in a fictional world. I am the only one on dias who has suffered a detention and like Dhavan said, I went to our courts; and our courts said that, ‘Our doors are shut for you.”.On independence of judiciary.Jaitley conceded that there were no two ways as far as judicial independence being a part of the Basic Structure was concerned. He, however, said that an interpretation of the Constitution to mean the exact opposite of what it states was totally incorrect..“There is no debate on whether independence of judiciary is part of the basic structure of Constitution.”.“[But] the 2015 interpretation of the Supreme Court is the opposite of what the Constitution says and what Ambedkar has proposed.”.“The Supreme Court is undermining other basic structures including parliamentary sovereignty.”.On judiciary and Collegium.It was no holds barred when it came to the Collegium system with Jaitley condemning it with the strongest possible words..“Collegium is like a Gymkhana club in which existing members appoint new members.”.“The Pre-1993 judges were undoubtedly better than post-1993 judges.”.“Executive recommendations have never been taken seriously by the Collegium.”.“Credibility of judiciary is as important as independence. No point being independent without credibility.”.“A judiciary with high levels of credibility, and one that is independent is the need of the hour.”.NJAC judgment founded on bad law.Jaitley said that the NJAC judgment was founded on the premise that politicians cannot be trusted and, therefore, the Court should keep the power of appointment to themselves..“The argument that politicians are bad, so let us hijack that power – this is against Constitutional democracy.”.“Two of the most distinguished judges of SC were politicians – Justice VR Krishna Iyer and Justice Hegde.”.“The rationale of SC judgment is not primacy of the CJI but exclusivity of the CJI.”.“That the Supreme Court says presence of law minister itself vitiates judicial independence, that interpretation is the problem.”.Jaitley to Lodha.Jaitley took a dig at the proposed hearing in Supreme Court which is slated for November 3 inviting suggestions for improving the Collegium system..“The next debate is happening on Nov 3. The function of Constituent Assembly is going to take place again there now.”.As the debate was concluding, Jaitley asked Lodha whether he would be ready to subject the records of the Collegium to RTI Act. Lodha responded in the affirmative..“If you were the CJI now, will you make Collegium records subject to RTI?”.“Absolutely”, said Lodha J..Justice (Retd. ) RM Lodha.The former Chief Justice of India vouched his support for judicial primacy in appointment of judges..“The word ‘Consultation’ in A. 124 cannot cannot be given dictionary meaning.”.“No law can be made which takes away primacy of judiciary.”.“Parliament is within its power to amend the Constitution as long as it does not destroy Basic Structure.”.“Rule of Law will have no meaning if discharge of judicial functions is subject to will of parliament.”.“Judges will be failing in their duty if they fail to strike down a law which violates basic structure.”.He questioned the intention of the government in changing the composition of the NJAC which was recommended in 1989..“Like the Executive of the time of Golanknath, the object of government has been to overrule Second Judges case.”.Admits Collegium has faults.Lodha J. was also realistic about the Collegium when he said that it has many faults including lack of transparency. He also said that the Collegium does not get proper inputs from the Executive after it has made recommendations and termed the reports of the Intelligence Bureau as “not useful”..“The Collegium system has faults. The lack of transparency major problem with Collegium.”.“Absence of an expert advisory body and unclear role of executive other problems.”.“The problem is Collegium not getting inputs which we expect from [the Executive], IB reports not useful.”.Soli Sorabjee.The former Attorney General was critical of the exclusivity of the judiciary in the appointments to the Supreme Court and High Courts..He said that instead of striking down the NJAC, the court could have “read into” the controversial term “eminent person”, to mean a person eminent in law..“Judges should have an important role but not an exclusive role.”.“Kurian Joseph J. himself has admitted in his concurring judgment that Collegium has failed.”.“SC could have read into ’eminent persons’ that such persons be of eminence in law.”.“You cannot strike down a Constitutional Amendment based on suspicions and ‘ifs’ and ‘buts’.”.Rajeev Dhavan.Dhavan began by taking a dig at Jaitley. He said that the standards applied to other democracies cannot be applied to India and said that the Supreme Court is entitled to interpret and rewrite Constitution according to the needs of the time..“Indian democracy is unique, we have a Parliament that does not function.”.“Forget other countries, we cannot copy them because our democracy is unruly.”.“Judiciary is constantly interpreting and rewriting Constitution, it is never static.”.“Does Jaitley believe we have a humpty dumpty judiciary. We don’t. We are proud to have an independent judiciary.”.“I still practise in Supreme Court because I still believe that most judges there are disciplined and independent.”.Concedes post retirement jobs have affected judicial independence.“Post retirement jobs are a real threat.”.“Passage on give & take psychology in Khehar J. Judgment should not have been there. I agree with Jaitley on that.”.The debate concluded without any clear outcome; as Arnab Goswami remarked, the lack of trust between the two wings was evident from the debate..“It was one of the few occasions when I spoke less”, signed off Goswami..The debate will be telecast on Times Now at 9 pm today..Bar & Bench would like to thank Mr. Pavan Chawla for his assistance at the venue. .Image courtesy: .Arnab Goswami.Arun Jaitley.Rajeev Dhavan