PRESS RELEASE
AIBA seeks Presidential Reference on controversial ‘collegium and NJAC’ issues as appointment of at least 125 judges for various High Courts is hanging fire
New Delhi, May 9 –
Appointment of at least 125 judges for various high courts is hanging fire due to a constitutional vacuum created by the abolition of the erstwhile collegium system and the delay in the creation of National Judicial Appointments Commission (NJAC), All India Bar Association (AIBA) has complained to President Pranab Mukherjee.
In a representation to the President, AIBA chairman and senior advocate Dr. Adish C Aggarwala the President’s intervention to ensure that the ongoing hearing of the NJAC case before the Supreme Court has referred to a 11-judge bench for a comprehensive settlement of the raging debate.
Drawing the President’s attention to the ongoing proceedings, Dr. Aggarwala said that during hearing the Attorney General Mukul Rohtagi had made a fervent plea for reconsidering the 1993 and 1998 judgments pronounced by the apex court which paved the way for collegium system of appointments.
The AG has requested the bench to refer the matter to a larger bench of 11 judges so that the issue could be settled once and for all. The Bench is yet to take a final decision on the issue.
Dr. Aggarwala said: “With the notification of the NJAC, the collegiums system is no more in existence. The government has already stopped consideration of over 125 names recommended by various high courts for appointment of judges. Further, some additional judges initially appointed for a period of two years are to be confirmed as permanent judges shortly. The present judicial stalemate does not augur well for the country.”
The AIBA strongly feels that vesting absolute power on the chief justice of India and the collegium in the matter of appointments for all times to come needs reconsideration to restore the equilibrium in the Constitution.
A Presidential Reference is required to answer following queries:
1. Whether the decision of the 1993 judgment declaring ‘consultation’ occuring in Article 124 of the Constitution as ‘concurrence’ and further reiterated in 1998 was the correct interpretation.
2. Whether in doing so the Supreme Court had traversed beyond the legislative intent of the framers of the Constitution.
3. Whether or not such an interpretation would amount to judicial legislation and re-writing the Constitution.
4. Whether the flawed collegium system with its opaque and non-transparent manner of appointments should continue forever; whether the National Judicial Appointments Commission has in any manner violated the basic structure of the Constitution.
5. Whether vesting the power of appointments to the Commission will affect the independence of the judiciary.
6. Whether merely because two ‘eminent’ persons are to be nominated, the NJAC dilutes judicial independence. And
7. Whether giving equal importance to the judiciary the law minister and two eminent persons will disturb the checks and balance in the Constitution.
Dr Aggarwala says a Reference will go a long way in saving the nation.
Experience in countries like United Kingdom, Australia, Canada and New Zealand had shown Judicial Appointments Commission for judges appointments is working very well.
(Dr. Adish C Aggarwala)
Senior Advocate
Chairman, All India Bar Association
Mobile :+(91) 9958177904, 9868510674
8.5.2015
His Excellency Hon’ble President of India
Rashtrapathi Bhavan,
New Delhi
Your Excellency,
AIBA seeks Presidential Reference on controversial ‘collegium and NJAC’ issues
On behalf of the All India Bar Association, I seek the immediate intervention of Your Excellency in the ongoing controversy relating to the validity of the National Judicial Appointments Commission to replace the collegium system of judicial appointments.
Your Excellency may be aware that the Supreme Court of India is hearing for the last two weeks a batch of writ petitions challenging the NJAC and the Constitution amendment laws. During the course of hearing it has now emerged that Mr. Mukul Rohtagi, Attorney General of India, is keen on the apex court reconsidering the 1993 and 1998 judgments pronounced by the apex court which paved the way for collegium system of appointments. The AG asserted before this five-judge Constitution bench that these decisions had stifled the democratic process of effective consultation with the Executive enunciated in Article 124 of the Constitution. The AG requested the bench to refer the matter to a larger bench of 11 judges so that the issue could be settled once and for all. It is the contention of the government that the apex court had rendered these judgments with patent disregard of legislative history and intent in arriving at the conclusion that consultation means concurrence.
He said the two decisions gave absolute power to the collegium headed by the CJI and held the field for 22 years. The collegium system had disturbed the checks and balances and separation of powers provided in the Constitution. The AG said the interpretation of Article 124 of the Constitution giving way for collegium system “does violence to Article 124 and renders otiose and tantamounts to deletion of parts of the provision.”
The AG said “the arrogation of power to the collegium which comprises of the CJI and four senior most judges of the Supreme Court dilutes the effect of individual consultation of the President of India with such other judges as he may deem necessary. It also had the effect of complete insulation of the judicial system from executive control which was not envisaged in the Constitution. The President was required to weigh all the views while arriving at a decision but the second judges case effectively obliterates the importance given to the President and the plurality of the views.”
Even as the AG was criticizing the two earlier judgments, the court asked the AG as to why it had not sought Presidential Reference under Article 145 (3) of the Constitution of India, as it was done during 1998. The court pointed out that without seeking review or a Reference it would not be proper for the apex court to reconsider its own decisions. It is in this context the AIBA seek your indulgence to step in immediately to save the judicial system in the country.
Your Excellency may be aware that with the notification of the NJAC the collegiums system is no more in existence. The government has already stopped consideration of over 125 names recommended by the various High Courts as appointment of Judges. Further some of the Additional Judges who were appointed for a period of two years are to be confirmed as permanent judges shortly. The present judicial stalemate does not augur well for the country.
Though the Supreme Court is to pronounce its verdict after conclusion of arguments in these proceedings, the AIBA strongly feels that it would be desirable if the President of India seeks Advisory opinion through a Reference so that the apex court would be bound to refer the issue to a larger Bench.
With over 36 years of standing in the bar and author of commentary on Constitution of India, I can safely say with confidence that the apex court in 1993 had indulged in judicial overreach when it held that President of India was bound by the advice of the Chief Justice of India and other members of the collegium in matters of judicial appointments if the collegium were to reiterate its position whenever there was any objection from the Executive through the President.
Experience in countries like United Kingdom, Australia, Canada and New Zealand had shown Judicial Appointments Commission for judges appointments is working very well. Under the original Constitution of India, the President was empowered to consult judges of the Supreme Court to arrive at a decision. This has been given a go-bye by the 1993 judgment, violating the doctrine of separation of powers among the three organs, viz executive, judiciary and legislature. The AIBA strongly feels that vesting absolute power on the CJI and the collegium in the matter of appointments for all times to come needs reconsideration to restore the equilibrium in the Constitution. This can be done only by Your Excellency’s intervention.
The Presidential Reference is required to answer several issues including the following, viz whether the decision of the 1993 judgment declaring ‘consultation’ occuring in Article 124 of the Constitution as ‘concurrence’ was the correct interpretation; whether in doing so the Supreme Court had traversed beyond the legislative intent of the framers of the Constitution; whether or not such an interpretation would amount to judicial legislation and re-writing the Constitution; whether the flawed collegium system with its opaque and non-transparent manner of appointments should continue for ever; whether the National Judicial Appointments Commission has in any manner violated the basic structure of the Constitution; whether vesting the power of appointments to the Commission will affect the independence of the judiciary; whether merely because two ‘eminent’ persons are to be nominated, the NJAC dilutes judicial independence and whether giving equal importance to the judiciary (CJI and two senior most judges), the Law Minister and two eminent persons will disturb the checks and balances in the Constitution.
Your Excellency, the questions are only indicative and not exhaustive and you may seek the advice of the Attorney General and other legal luminaries in framing the questions. I can safely say that your intervention through a Reference will go a long way in saving the nation.
With regards,
Yours sincerely,
(Dr. Adish C Aggarwala)
Senior Advocate
Chairman, All India Bar Association
Mobile :+(91) 9958177904, 9868510674
Copy to :
Hon’ble Mr. Narendra Modi, Prime Minister of India
Hon’ble Mr. D.V. Sadananda Gowda, Law & Justice Minister of India
Learned Mr. Mukul Rohtagi, Attorney General of India
With a request to do the needful at the earliest.
(Dr. Adish C Aggarwala)
—
Dr. Adish C. Aggarwala, Senior Advocate
President, International Council of Jurists (www.internationaljurists.org)
President, International Commission of Writers (www.internationalwriters.org)
Chairman, All India Bar Association (allindiabar.org)
Chairman, India Legal Information Institute (www.indlii.org)
Special Counsel for Government of India (www.lawmin.nic.in)
Advisor, Adish Aggarwala Law Chambers (www.aalc.com)
Ex. Vice-Chairman, Bar Council of India (www.barcouncilofndia.org)
Ex. Chairman, Bar Council of Delhi (www.delhibarcouncil.com)
Ex. Senior Additional Advocate General of Govt. of Haryana (www.haryana.gov.in)
Ex. Additional Advocate General of Govt. of Punjab (www.punjabgovt.gov.in)
Ex. Additional Advocate General of Govt. of Uttar Pradesh (www.up.nic.in)
Ex. Additional Advocate General of Govt. of Tamil Nadu (www.tn.gov.in)
Ex. Vice-President, Supreme Court Bar Association (www.scbaindia.org)
email: [email protected], [email protected]
UK Tele: +(44) 20-81335686
UK Fax : +(44) 20-77991687
UK Mobile: +(44) 785 4740880
India Mobile : +(91) 9868510674, 9910063501, 9958177904
Skype ID : adishcaggarwala
AIBA seeks Presidential Reference on controversial ‘collegium and NJAC’ issues as appointment of at least 125 judges for various High Courts is hanging fire
New Delhi, May 9 –
Appointment of at least 125 judges for various high courts is hanging fire due to a constitutional vacuum created by the abolition of the erstwhile collegium system and the delay in the creation of National Judicial Appointments Commission (NJAC), All India Bar Association (AIBA) has complained to President Pranab Mukherjee.
In a representation to the President, AIBA chairman and senior advocate Dr. Adish C Aggarwala the President’s intervention to ensure that the ongoing hearing of the NJAC case before the Supreme Court has referred to a 11-judge bench for a comprehensive settlement of the raging debate.
Drawing the President’s attention to the ongoing proceedings, Dr. Aggarwala said that during hearing the Attorney General Mukul Rohtagi had made a fervent plea for reconsidering the 1993 and 1998 judgments pronounced by the apex court which paved the way for collegium system of appointments.
The AG has requested the bench to refer the matter to a larger bench of 11 judges so that the issue could be settled once and for all. The Bench is yet to take a final decision on the issue.
Dr. Aggarwala said: “With the notification of the NJAC, the collegiums system is no more in existence. The government has already stopped consideration of over 125 names recommended by various high courts for appointment of judges. Further, some additional judges initially appointed for a period of two years are to be confirmed as permanent judges shortly. The present judicial stalemate does not augur well for the country.”
The AIBA strongly feels that vesting absolute power on the chief justice of India and the collegium in the matter of appointments for all times to come needs reconsideration to restore the equilibrium in the Constitution.
A Presidential Reference is required to answer following queries:
1. Whether the decision of the 1993 judgment declaring ‘consultation’ occuring in Article 124 of the Constitution as ‘concurrence’ and further reiterated in 1998 was the correct interpretation.
2. Whether in doing so the Supreme Court had traversed beyond the legislative intent of the framers of the Constitution.
3. Whether or not such an interpretation would amount to judicial legislation and re-writing the Constitution.
4. Whether the flawed collegium system with its opaque and non-transparent manner of appointments should continue forever; whether the National Judicial Appointments Commission has in any manner violated the basic structure of the Constitution.
5. Whether vesting the power of appointments to the Commission will affect the independence of the judiciary.
6. Whether merely because two ‘eminent’ persons are to be nominated, the NJAC dilutes judicial independence. And
7. Whether giving equal importance to the judiciary the law minister and two eminent persons will disturb the checks and balance in the Constitution.
Dr Aggarwala says a Reference will go a long way in saving the nation.
Experience in countries like United Kingdom, Australia, Canada and New Zealand had shown Judicial Appointments Commission for judges appointments is working very well.
(Dr. Adish C Aggarwala)
Senior Advocate
Chairman, All India Bar Association
Mobile :+(91) 9958177904, 9868510674
8.5.2015
His Excellency Hon’ble President of India
Rashtrapathi Bhavan,
New Delhi
Your Excellency,
AIBA seeks Presidential Reference on controversial ‘collegium and NJAC’ issues
On behalf of the All India Bar Association, I seek the immediate intervention of Your Excellency in the ongoing controversy relating to the validity of the National Judicial Appointments Commission to replace the collegium system of judicial appointments.
Your Excellency may be aware that the Supreme Court of India is hearing for the last two weeks a batch of writ petitions challenging the NJAC and the Constitution amendment laws. During the course of hearing it has now emerged that Mr. Mukul Rohtagi, Attorney General of India, is keen on the apex court reconsidering the 1993 and 1998 judgments pronounced by the apex court which paved the way for collegium system of appointments. The AG asserted before this five-judge Constitution bench that these decisions had stifled the democratic process of effective consultation with the Executive enunciated in Article 124 of the Constitution. The AG requested the bench to refer the matter to a larger bench of 11 judges so that the issue could be settled once and for all. It is the contention of the government that the apex court had rendered these judgments with patent disregard of legislative history and intent in arriving at the conclusion that consultation means concurrence.
He said the two decisions gave absolute power to the collegium headed by the CJI and held the field for 22 years. The collegium system had disturbed the checks and balances and separation of powers provided in the Constitution. The AG said the interpretation of Article 124 of the Constitution giving way for collegium system “does violence to Article 124 and renders otiose and tantamounts to deletion of parts of the provision.”
The AG said “the arrogation of power to the collegium which comprises of the CJI and four senior most judges of the Supreme Court dilutes the effect of individual consultation of the President of India with such other judges as he may deem necessary. It also had the effect of complete insulation of the judicial system from executive control which was not envisaged in the Constitution. The President was required to weigh all the views while arriving at a decision but the second judges case effectively obliterates the importance given to the President and the plurality of the views.”
Even as the AG was criticizing the two earlier judgments, the court asked the AG as to why it had not sought Presidential Reference under Article 145 (3) of the Constitution of India, as it was done during 1998. The court pointed out that without seeking review or a Reference it would not be proper for the apex court to reconsider its own decisions. It is in this context the AIBA seek your indulgence to step in immediately to save the judicial system in the country.
Your Excellency may be aware that with the notification of the NJAC the collegiums system is no more in existence. The government has already stopped consideration of over 125 names recommended by the various High Courts as appointment of Judges. Further some of the Additional Judges who were appointed for a period of two years are to be confirmed as permanent judges shortly. The present judicial stalemate does not augur well for the country.
Though the Supreme Court is to pronounce its verdict after conclusion of arguments in these proceedings, the AIBA strongly feels that it would be desirable if the President of India seeks Advisory opinion through a Reference so that the apex court would be bound to refer the issue to a larger Bench.
With over 36 years of standing in the bar and author of commentary on Constitution of India, I can safely say with confidence that the apex court in 1993 had indulged in judicial overreach when it held that President of India was bound by the advice of the Chief Justice of India and other members of the collegium in matters of judicial appointments if the collegium were to reiterate its position whenever there was any objection from the Executive through the President.
Experience in countries like United Kingdom, Australia, Canada and New Zealand had shown Judicial Appointments Commission for judges appointments is working very well. Under the original Constitution of India, the President was empowered to consult judges of the Supreme Court to arrive at a decision. This has been given a go-bye by the 1993 judgment, violating the doctrine of separation of powers among the three organs, viz executive, judiciary and legislature. The AIBA strongly feels that vesting absolute power on the CJI and the collegium in the matter of appointments for all times to come needs reconsideration to restore the equilibrium in the Constitution. This can be done only by Your Excellency’s intervention.
The Presidential Reference is required to answer several issues including the following, viz whether the decision of the 1993 judgment declaring ‘consultation’ occuring in Article 124 of the Constitution as ‘concurrence’ was the correct interpretation; whether in doing so the Supreme Court had traversed beyond the legislative intent of the framers of the Constitution; whether or not such an interpretation would amount to judicial legislation and re-writing the Constitution; whether the flawed collegium system with its opaque and non-transparent manner of appointments should continue for ever; whether the National Judicial Appointments Commission has in any manner violated the basic structure of the Constitution; whether vesting the power of appointments to the Commission will affect the independence of the judiciary; whether merely because two ‘eminent’ persons are to be nominated, the NJAC dilutes judicial independence and whether giving equal importance to the judiciary (CJI and two senior most judges), the Law Minister and two eminent persons will disturb the checks and balances in the Constitution.
Your Excellency, the questions are only indicative and not exhaustive and you may seek the advice of the Attorney General and other legal luminaries in framing the questions. I can safely say that your intervention through a Reference will go a long way in saving the nation.
With regards,
Yours sincerely,
(Dr. Adish C Aggarwala)
Senior Advocate
Chairman, All India Bar Association
Mobile :+(91) 9958177904, 9868510674
Copy to :
Hon’ble Mr. Narendra Modi, Prime Minister of India
Hon’ble Mr. D.V. Sadananda Gowda, Law & Justice Minister of India
Learned Mr. Mukul Rohtagi, Attorney General of India
With a request to do the needful at the earliest.
(Dr. Adish C Aggarwala)
—
Dr. Adish C. Aggarwala, Senior Advocate
President, International Council of Jurists (www.internationaljurists.org)
President, International Commission of Writers (www.internationalwriters.org)
Chairman, All India Bar Association (allindiabar.org)
Chairman, India Legal Information Institute (www.indlii.org)
Special Counsel for Government of India (www.lawmin.nic.in)
Advisor, Adish Aggarwala Law Chambers (www.aalc.com)
Ex. Vice-Chairman, Bar Council of India (www.barcouncilofndia.org)
Ex. Chairman, Bar Council of Delhi (www.delhibarcouncil.com)
Ex. Senior Additional Advocate General of Govt. of Haryana (www.haryana.gov.in)
Ex. Additional Advocate General of Govt. of Punjab (www.punjabgovt.gov.in)
Ex. Additional Advocate General of Govt. of Uttar Pradesh (www.up.nic.in)
Ex. Additional Advocate General of Govt. of Tamil Nadu (www.tn.gov.in)
Ex. Vice-President, Supreme Court Bar Association (www.scbaindia.org)
email: [email protected], [email protected]
UK Tele: +(44) 20-81335686
UK Fax : +(44) 20-77991687
UK Mobile: +(44) 785 4740880
India Mobile : +(91) 9868510674, 9910063501, 9958177904
Skype ID : adishcaggarwala
