Supreme Court Bar Association slams Collegium system, says common man ignored

New Delhi: The apex court’s Bar on Wednesday strongly backed the National Judicial Appointments Commission (NJAC) and sharply attacked the collegium system which produced judges who give relief to film stars and politicians while the victims of the 1984 anti-Sikh riots and the 2002 Gujarat riots have not got justice. Referring to cases related to these two riots, Supreme Court Bar Association (SCBA) President and senior advocate Dushyant Dave told a five-judge bench headed by Justice J S Khehar that common man and the victims of violations of human rights have not been given justice. [caption id=“attachment_2293706” align=“alignleft” width=“380”] Supreme Court of India. Reuters[/caption] “It’s a shame on us that we have not delivered justice to cases related to violations of human values and human rights,” the bench, also comprising justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel said. At one stage during arguments, he said persons like Maya Kodnani, a former Guajarat minister convicted in a riots case, are getting relief on the one hand and on the other, activist Teesta Setalvad had to run from pillar to post to get anticipatory bail, he said. The Bar leader gave several recent instances without naming the persons where a convicted politician and two Bollywood stars got relief from the Supreme Court and two different High Courts respectively. “Why film stars and politicians get instant relief from courts and the common man suffers for years,” Dave raised a question and answered himself,“It is because of bad judges.” Dave asked the judges to “wear burqa” and walk on court’s corridor to have a first-hand account of the status of the judicial system. “You cannot have ideal humans across the board,” the bench said and asked the SCBA president to suggest remedial measures to better the system. “You have given us enough ’lecture’. Why don’t you give suggestions to improve. You must give a remedial situation. You just want to react but don’t want to suggest anything. Dave was upset at the word “lecture” used by the bench and said that he spoke from the heart and did not intend to hurt the sentiments of the judiciary. “I felt hurt as my Lord characterised my argument as lecture. What I spoke came from my heart. I still say majority of judges are outstanding and a minority is bad,” Dave said. “There are many things spoken from heart. You paint all of the judges with the same brush. We understand the agony and spirit but we want remedy. You can think over it and tell us,” the bench said. At the outset, Dave referred to various Constitutional provisions related to appointment of judges in trial courts and higher judiciary and said that constitutional framers have rejected the primacy of judiciary after debating the issue in the Constituent Assembly. The 1993 judgement turned the Constitutional scheme “upside down”, he said adding “how can your Lordship read into words which were not there at all…the Constitution cannot be tinkered with in this fashion. “You cannot add a word in a Constitution which was not there and it is not that the issue was not debated in the Constituent Assembly. It was debated and rejected”. Finding fault with the 1993 verdict that had paved the way for the collegium system, he said,“I dare say that the judgement did not refer to any Constituent Assembly debate and previous judgements”. On the issue of nomination of two eminent persons in the NJAC, Dave said that the executive, the Parliament and the judiciary are well represented in the panel which would select them. “What more can be there to ensure that the process is safeguarded,” he said adding that the objections raised by petitioners including Supreme Court Advocates on Record Association (SCAORA) are mere “apprehensions”. “There is every reason to believe that two eminent persons would be nominated by an unanimous choice,” he said and added that even the court can say that there has to be collective decision. During the hearing, Dave referred to various incidents to highlight the shortcomings of the collegium system. A Bollywood actor has been granted relief by the Gujarat High Court where a bench was constituted for it, he said adding “the Supreme Court grants bail to in one day to a convicted politician”. “In fact, every court is going extra mile to protect the high and mighty… a driver gets bail within hours if he happens to be film star,” he said adding that it doesn’t happen for the common man. He then referred to appointment of a High Court judge who was the partner of a son of a former Chief Justice of India and said that the Chief Justice of the High Court was later rewarded with his elevation to the apex court. He also gave the illustration of a Kolkata High Court judge who had objected to the appointment of the sister of the ex-CJI in the High Court judiciary. “There is no smoke without fire”, he said adding “wear a burqa and walk in the corridor, you will be embarrassed”. Dave said that the executive always wants pliable judiciary and also referred to reliefs being granted to accused persons in the 2002 riots and the Sohrabuddin fake encounter case. The SCBA President said that though the NDA government is taking credit of earning Rs 2 lakh crore in coal auction, it was person like Prashant Bhushan who did it by “courageously” moving to the apex court. He also referred to an instance where a Supreme Court judge got a property matter transferred from other court before a bench headed by him and said that the judiciary will have to do something. “First you grab the power and then say it is not justiciable. This is what we have seen in last 20 years in the collegium system,” he said. On the issue of elevation of judges in the apex court, he said,“some finest judges have been denied elevation for years as somebody in the collegium didn’t like him”. Dave, who hails from Gujarat, said, “in my High Court, there is a system of one yours, one mine”. Supporting the NJAC, the bar leader said that this system is a “Constitutional” one and nobody knows as to how it will function. Dave also said that the bar, which has some good lawyers also, has never been consulted by the bench and gave example of Pakistan where entire bar stood behind the ousted CJI when army general Pervez Musharraf staged the coup. The bench expressed unhappiness when Dave could not give suggestions and said that he will file written submissions on the issue. It also did not agree with the submission of Dave that the framers of the Constitution had given wide amending powers to the Parliament to avoid revolution. “We know and have seen how much Civil Society fights for rights of people and when it stops. I do not see it (revolution) ever coming,” the bench said. After SCBA president concluded his arguments, Attorney General Mukul Rohtagi gave some judgements to the bench to highlight the fact that there was no infirmity in the simultaneous passage of the NJAC Act and the 99th Constitutional Amendment in the Parliament. Senior advocate F S Nariman, representing SCAORA which is seeking quashing of NJAC, started his rejoinder arguments and said that the Supreme Court has the power to interpret the Constitution and the amendments made in it. He also referred to various case laws in support of his arguments that there is a principle of supremacy of Constitution. He also objected to AG’s note on bad appointments. “There has been very extensive participation of the executive. It cannot be said to be mere inputs (from the executive). There are situations when entire collegium made the reference, executive opposed and then the proposal was absolutely dropped at the instance of executive,” the bench said. It also asked the Centre to give examples where names have been dropped at the instance of the executive. Nariman, at the fag end of the day, replied to the submissions of lawyers who had quoted from his autobiography to highlight his opposition to NJAC. “I have been a supporter of a judicial commission but not a supporter of quasi judicial panel,” he said. Nariman will resume his arguments tomorrow. PTI