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Updated: June 14, 2013 01:20 IST

A trojan horse at the judiciary’s door

Anil Divan
Comment (34)   ·   print   ·   T  T  
The Hindu

The government’s attempt to restore the predominant voice of the political class through the Judicial Appointments Commission is a recipe for disaster

“Even so, the creed of judicial independence is our constitutional ‘religion’ and, if the executive use Article 222 to imperil this basic tenet, the Court must ‘do or die’” — Justice Krishna Iyer

A recent proposal for a Judicial Appointments Commission as structured by the government poses a grave threat to the independence of the judiciary. According to media reports, the Commission is likely to consist of seven members — the Chief Justice of India and two senior-most judges of the Supreme Court, the Law Minister, two eminent jurists nominated by the President, and the Leader of the Opposition. If past experience is a guide, eminent jurists enjoying or aspiring to enjoy political power, or beguiled by official patronage, have displayed little warmth and much hostility to the independence of the judiciary and the rule of law. The present proposal will require a constitutional amendment.

Draft Bill

In April 2013, media reports indicated that the government was contemplating reform proposals regarding appointment of judges to the Supreme Court and the High Courts. A draft Bill by the Law Ministry then headed by Ashwani Kumar was to submit the Judicial Appointments Commission Bill to the Cabinet by April 22.

On April 15, 2013, a letter signed by many senior lawyers (including Fali Nariman, M.N. Krishnamani, Shanti Bhushan, Ashok Desai, K.K. Venugopal, P.P. Rao, K.N. Bhat, Mukul Rohtagi and the author) was sent to the Law Minister, requesting him to make available to the public and the Bar the draft of the proposed Bill to ensure a robust, informed and critical debate. The plea fell on deaf ears and the draft Bill remains a well-guarded secret.

In the first week of June, the new Law Minister, Kabil Sibal, is reported to have said: “Just as judges have enormous stake in the appointment of judicial officers in the higher judiciary [the Supreme Court and the 24 High Courts], the government has an equal stake. Since both of us have stakes in the appointments of members of the higher judiciary, the consultation of both of them is absolutely necessary. The government must have a say.” (The Hindu, June 2, 2013)

The collegium system

This article deals only with the government proposal. It does not deal with how to reform the collegium system. The principal criticism against the collegium system is that it is non-transparent; personal likes and dislikes and prejudices weigh with individual judges in the collegium; the mandatory effective consultation process is wholly opaque and unknown to the public; and meritorious candidates from the Bar and the High Courts are overlooked for undisclosed reasons. It must be highlighted that the collegium system has not attracted any significant criticism that political favourites or pliant judges have been appointed.

Supreme Court judgment

The current appointment mechanism is the result of two judgments of the Supreme Court viz Presidential Reference No. 1 of 1998 (unanimous) and SCAORA vs. UOI (seven against two). The two judgments overruled in part the majority view in S.P. Gupta vs. UOI by holding that in case of a difference of opinion, the CJI’s view as reflected through the collegium would have primacy over the view of the Central government. The concern of the judgments was to eliminate political interference at the stage of appointment. The court observed that “it was obvious that the provision of consultation with the Chief Justice of India … was introduced … to eliminate political influence even at the stage of the initial appointment of a judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary.”

The judgments laid down a mandatory consultation process between the constitutional authorities, including the Central government which has inputs from various intelligence agencies. The complaint that the Central government is not consulted or has no say in the matter is misleading and incorrect.

Current scenario

The government is upset because the executive does not now have the primacy it enjoyed earlier. The vigorous judicial scrutiny and oversight of executive misdemeanours in the 2G scam and Coalgate litigations (apart from many others) has rattled the executive. The present administration is smarting under these decisions and has been consistently attacking all constitutional authorities such as the Comptroller and Auditor-General, the Chief Election Commission and the judiciary which acts as a check on executive power.

Historical background

For the new generation of citizens, it is necessary to recall the experience of the past resulting in the collegium mechanism. Congress administrations have been in power for over 52 of the last 63 years of constitutional governance. Consistent attempts have been made to undermine and subvert the independence of the judiciary and the rule of law.

On April 25, 1973, a day after the delivery of the judgment in the Fundamental Rights case (Kesavananda Bharati), the Indira Gandhi government, departing from earlier conventions, superseded three of the senior-most judges (who had decided against the government) and appointed A.N. Ray as Chief Justice of India. Justice Ray had decided three major cases in favour of the Central government — though in the minority — namely the Bank Nationalisation case, the Privy Purse case and the Kesavananda Bharati case. The government stand was to appoint “forward looking” judges who shared its philosophy — a euphemism for compliant judges.

This led to vigorous public protests all over India. J.C. Shah (former CJI), M.C. Setalvad, C.K. Dapthary (two former Attorney-Generals) M.C. Chagla (former Chief Justice of Bombay), V.M. Tarkunde, (former judge of the Bombay High Court), K.T. Desai (former Chief Justice of Gujarat) and N.A. Palkhivala condemned the supersession as a grave threat to judicial independence.

After the declaration of Internal Emergency in June 1975 (as a sequel to the disqualification of Indira Gandhi who lost her election petition and could not obtain a complete stay from the Supreme Court), a calibrated, predetermined attack on judicial independence was organised and implemented. Mass transfers of 16 independent High Court judges, including A.P. Sen, Chinnappa Reddy, B.J. Divan, Sankalchand Sheth, J.R. Vimadalal and P.M. Mukhi, from their parent High Courts were made. Additional Judge U.R. Lalit was not confirmed. Justice S. Rangarajan was transferred to Sikkim because he delivered a judgment in favour of Kuldip Nayar (preventively detained) and a Service Judge R.N. Aggarwal who concurred was reverted as a Sessions Judge (after four years in the Delhi High Court). These were all punitive measures to intimidate independent and fearless judges and undermine their morale.

During the Emergency, the Constitution was extensively amended. Judicial review was almost eliminated and a two-third majority of judges was mandated for invalidating legislation. The press was censored and Opposition leaders were preventively detained without trial.

After the fall of the Janata government, Indira Gandhi came back to power in 1980. Law Minister Shiv Shankar issued a circular claiming power to transfer High Court judges and attempted to transfer some existing judges and refused to confirm some additional judges. This led to the famous case of S.P. Gupta vs. UOI in which, by a majority, the Supreme Court held that in case of a difference of opinion, the government view would have primacy over the view of the Chief Justice of India on appointments and transfers.

Post-1980 (till the evolution of the collegium mechanism), many quipped: “Better to know the Law Minister than the law.” It was widely believed that the executive was blocking appointments recommended by the CJI unless its nominees were cleared by a trade-off. Further, it was the perception of many that favourable orders could be obtained by the executive from compliant judges for dubious considerations.

Failed system

The collegium system is now current since 1993 (a span of about 20 years) and several criticisms and shortcomings have surfaced as mentioned above. Reform of the above system is necessary but that should not be brought about by restoring a failed system which posed a threat to the independence of the judiciary and the rule of law.

The Judicial Appointments Commission is so structured as to revive the dominant voice of the political class by including the Law Minister, two eminent jurists nominated by the government and the Leader of the Opposition.

In sum, with all its shortcomings, the present collegium system is definitely superior to the earlier one. The attempt to restore the predominant voice of the political class in judicial appointments and transfers will amount to subverting the basic structure of the Constitution and will be a recipe for disaster. Each one of us must strongly resist this attempt.

The present proposal is a poisoned chalice, an ill-concealed wolf in sheep’s clothing.

To conclude, I quote the venerable Justice Krishna Iyer — ‘hands off judges’ is too sacred to be sacrificed.

(Anil Divan is President, Bar Association of India. anildivan@gmail.com)

More In: Lead | Opinion

Without taking sides, either the ever corrupt Govts. or Judiciary, it is absolutely important that the corrupt politcos be kept as far off the system of Judiciary as possible. Wherever political class has been given leg room it has occupied the space as its own property. For e.g. look at the various sports administrations (majority controlled by politicos of all hues), and where does India stand in the world of sports.
It is quite clear after the recent spate of scams and the involvement of even higher corridors of executives including PMO surfacing (with proofs) that the Government has chosen to control even the CAG, Supreme Court and other reputed institutions. I completely agree with Mr. Divan that this is another attempt by the Govt. and politicians to evergreen its illegal, corrupt and nepotistic designs on the country.
We all must unite and stop any such attempts of the corrupt politicians.

from:  Rahul
Posted on: Jun 15, 2013 at 16:05 IST

Judiciary has kept pace with the Nation's deterioration The executive must must not seek still greater corruption.

from:  S. Suchindranath Aiyer
Posted on: Jun 15, 2013 at 09:57 IST

It is high time that we as a people recognize that there lies a bridge
between what we have written down in our Constitution to follow as an
ideal and what actually transpires. Much verbiage is written about the
separation of powers and the rule of law. Little has been followed.
Despite repeated incursions onto core democratic values, the proposed
actions and inactions of the Executive continue to be analyzed and
argued for by reference to the established framework of written
constitutional provisions and written law. When there has been too
large a departure from the written down standards, maybe it is time to
adopt a new framework. One in which we don't tolerate the abuse of 'constitutional' arguments in convenient marriages with the Government's need of the hour.

from:  Shreyas
Posted on: Jun 15, 2013 at 08:58 IST

Quoting the events of 1973 or 1975 is unwarranted.If this is the
reason behind the evolution of Collegiums system as projected by Mr.
Diwan then various Judgments of 1993, 1998 and 1999 will suffer from
allegations of coloured exercise of Judicial powers with an oblique
motive of keeping the alleged brutal Executive from the affairs of
appointment of Judges. For the same reasons the lengthy justification
for Independency of Judiciary and Primacy of opinion of CJI in the
obiter dicta of these judgments will become farce and preconceived.
Will you agree? What about the forced resignations of Judges under
controversial circumstances, mysterious stay of Judges in a Guest
House,, huge amount of cash wrongly delivered at the doors of a Judge,
Impeachment of a Judge etc.? Do you know all controversial judges were earlier
Advocates and appointed under Collegiums System? Where is the
accountability or credibility for the Collegiums System?

from:  Prof. N. Gunachandran
Posted on: Jun 15, 2013 at 07:34 IST

This is the first time I am hearing the other side of he story, besides hearing all the
time that judicial appointments are not transparent and executives must have a say.
Mr. Divan has done a great job in informing public. I hope that if any legislation
comes up, Supreme court will struck it down. Bt we still need more transparency in
judges appointments.

from:  Vinci
Posted on: Jun 15, 2013 at 06:59 IST

Position of a judge is a technical position and only other judges can 'judge' how good someone is performing. So why should political or executive people, who are not experts in the field, get involved? Note that judiciary, CBI etc are NOT government. All these entities should run parallel and independent of each other for People of India. Also note that in any criminal case for example, police (executive) and accused are on opposite sides, so judiciary need to be independent if they have to give a decision.

from:  Vivek Agarwal
Posted on: Jun 15, 2013 at 01:43 IST

Quoting of Mrs. Indira Gandhi's actions of 1975 is unwarranted.
Further by saying that the developments from 1973 has culminated in S
P Gupta's case and the Second Judge case of 1993 is wrong. If it is
true then the Judgments of 1993, Response to Presidential reference of
1998 and the Third Judge case of 1999 will all become colourable
exercise of Judicial Power with oblique motive based on the aim of
putting end to Brutal Executive. Does Mr Diwan mean this? The
collegiums System is an utter failure and it is nothing but a Diarchy
Rule of Law enforced without seeking any amendments to the
Constitution. What is the explanation of Mr Diwan for the unsavaroury
incidents of forced resignations of controversial Judges, Impeachment,
misterious stay of Judges at a Guest house, and a sitting Judge an
alleged Declared absconder? How these Judges came to be appointed
under Collegiums System? Where is the sanctity for the Primacy of
opinion of CJI in these cases? Don't mislead the people.

from:  Prof. N. Gunachandran
Posted on: Jun 15, 2013 at 00:26 IST

The 2014 election prospects may be haunting the congress brass. The successor
government might give powers to constitutional bodies to deal with new billionaires. Hence
preemptive steps are being taken now.

from:  Kaliappan
Posted on: Jun 14, 2013 at 22:35 IST

The proposed collegium system is great thought by UPA government to
have the judgments in its favor. It became the habit of
politicians/government to make the laws in their aid. The government is
saved with this proposed system from its misdeeds as many scams were
surfaced during its tenure. They say CAG is crossing its limits. People
in India are not fools, they know who's crossing the limits. Laws are
made for all, politicians are not exempted from punishment. So this is a
way they are trying to escape at the entrance itself.

from:  mandala yadaiah
Posted on: Jun 14, 2013 at 22:00 IST

Learning from the past happenings is always desirable. I honestly disagree with the opposition of proposed Judicial Appointments Commission. The reasons, relevant for this article, are-
1. Both the practices i.e. appointments of Judges when Executive had the main say and when the Judiciary has the main say, have failed as stated in the article. And the proposed mechanism tries to create a right-mixed panel including CJI with two senior most judges. This seems to be appropriate to filter out the ill-interest of both i.e. the Executive as well as the Judiciary.
2. The balance among organs of State is seen in favor of Judiciary at least in recent past. The so called overreach of Judiciary need to be curtailed. It is being felt the Judiciary often penetrates into the jurisdiction of the Executive. This is also in violation of the Principle of Separation of Powers enshrine in the Constitution of India.
The diverse interests in JAC will enable for emergence of right choice of the Judge.

from:  Santosh Kumar
Posted on: Jun 14, 2013 at 21:18 IST

Taking it from where the law minister had left it, executive have
stakes in the judicial system that is why the collegium system is in
place, but reverting it back into the old chaos and turmoil of 1970's
in the name of reforming it will be a major disaster. With the
constitutional bodies like CAG, election commission of India keeping a
check on govt's power, the one in power is trying to toe it down with
such undemocratic legislation. With the power dynamics changing
stringently between the judiciary and legislature, each trying to
catch an upper hand, the country's decentralization is moving in a
back and forth harmonic motion. In a democratic set up it takes time
to evaluate, execute and conclude the efficacy of a rule of procedure.
The independence of our judiciary along with its judicial activism has
being the cornerstone of world's largest democracy acting as the
guarantor of fundamental rights through writs and remedies. The
citizens must stand for the independence of judiciary

from:  sahil gupta
Posted on: Jun 14, 2013 at 17:13 IST

For the last 65 years since independence the common man had witnessed
time and again the courts coming to the rescue of common man when the
government had failed him It is a well known fact in India that the
politician is an intolerant creature and tries to play down or destroy
something in his attempt to get to his goal however selfish and self
serving it may be.

Let us fight tooth and nail in preventing him to tamper a well proven
system

from:  kRISHNASWAMY V
Posted on: Jun 14, 2013 at 16:40 IST

Tis is yet another crude attempt on the part of the UPA II Government to whittle down the power of the judiciary, the last bastion of democracy and protector of the common man's rights and privileges. Such a Draconian measure should be nipped in the bud now itself by all possible means before it raises its ugly head. Failure to do so will surely reduce the nation, both present and the future generation to one of abject slavery at the hands of a coterie out to exploit the nation's natural resources to meet their selfish needs, Timely action is the need of the hour.

from:  TSSreenivasan
Posted on: Jun 14, 2013 at 16:02 IST

As pointed out in this article, 'the government's proposal for a Judicial Appointments Commission' is a trogan horse intented to attack and weaken the Judiciary through the selection of Judges. Present day politicians cannot be trusted as they had grown in corrupt environment and are promoting corruption. These politicians as law make pass dubious laws that allow criminals debarred from voting to contest, win and make laws to suit them. This has resulted in the election of more than 50% of lawmakers with criminal records and they don't care to make new laws that will wipe out corruption and ineficiency in public life. One law Minister had to resign after he was found to doctor investigative report submitted to court and was in the company of lawyers comitting perjury in court. If such people are to be allowed to have a say in the selection of Judges, one can imagine the resulting damage to the society. Such bills are prescriptions to destroy the constitution and to be opposed.

from:  sundaram
Posted on: Jun 14, 2013 at 16:01 IST

Mr. Divan shows an unfair hatred to the “political class.” It is
difficult to agree that involvement of the law Minister and leader of
the opposition to a committee with CJI to select judges would be a
“disaster” and a negation of the basic –structure of the constitution.

The judiciary currently is the most orthodox and self-serving wing of
the state filled with sons and daughters of judges and lawyers.
Pending cases and inefficiency is a millstone around their neck. There
is a need for them to look within and reform and not block progressive
changes.

It should not be forgotten that the present system where a “collegium
of judges” make all appointment to higher judiciary with the President
merely acting as signatory was not what Constitution intended. The
primacy of judges and CJI in appointment to higher judiciary was in
fact rejected by the framers of the Constitution. An appointment
commission will introduce a balance, between primacy to the President
or a Collegium.

from:  Joy
Posted on: Jun 14, 2013 at 16:01 IST

I request the authour to propose a more transparent and meritorious system of appointment and transfers of judges, not just in the High Court or Supreme Court, but also in lower judiciary, where the bulk of corruption takes place.

from:  Abhinav
Posted on: Jun 14, 2013 at 15:44 IST

Our Constitution has provided a balance of power between the organ of
democracy.Independence means not that judiciary can do what it
want,but there are also some checks.These checks provided a
restriction on the misuse of power which is provided by our
constitution to these organs.When executive is over stepping its
power then it is judiciary and legislature which can restrict it.In
the same way there is also some checks provided on
Judiciary. judiciary can't run away from accountability to
the people of India on the name of independence of judiciary and
basic structure of the Constitution.In some manner executive have
maintain the checks on judiciary which is provided by the
constitution and through Judicial appointment commission government
is doing that.

from:  Sarvesh Mishra
Posted on: Jun 14, 2013 at 14:46 IST

In our Country when all are for bidding - at present - even the
opposition supports those items where there will be gains for them,
the best example: Salary raise of MP's passed Unanimously by
Parliament. Do we expect the Country & constitution to be held above
their Self Welfare? This question needs to be taken very seriously by
all of us if we need to have a better Country to be bequeathed to our
Next Generation.

Will we wake up with A STERN RESOLUTION TO CHANGE THIS PRESENT STATE
OF AFFAIRS OF OUR COUNTRY PLEASE??? I am ashamed to add the word
PLEASE - but this is the Reality of our present Generation.

Yet I take up this request Please WAKE UP BEFORE THE PRICE OF WAKING
UP GOES PHENOMENALLY HIGH.

from:  Venkatramani
Posted on: Jun 14, 2013 at 12:37 IST

ITs like a joke being cracked with citizens of India, and mockery of
our constitution when our executive is continually attacking the
constitutional bodies, rather than aiming to transform its ill
governed policies and root out corrupt people from the government.
Rather than going for Judicial Appointment commission, our executive
needs to focus on how to empower people and process so that corrupt
practices are not only curtailed but the guilty gets its fair share of
punishment. It would further be better if congress would have accepted
malfunctioning happened till date, and apologized from the citizens of
country rather than trying to be-fool people with its attempts at
interfering with constitutional bodies on the name of judicial
reforms.

from:  rajesh sharma
Posted on: Jun 14, 2013 at 12:33 IST

I wholeheartedly support the view expressed in the article and would like all Indians to shout at the top of their voices (in front of the parliament, prime minister and congress president), in the words of legendary icon Justice Krishna : "hands off Judges" Judiciary is too sacred to be sacrificed. It is the only silver lining left to curb executive excesses and nepotism. If congress commits the sin, no God-man will accept its confession and the founding fathers will curse their posterity. Again I quote the words of Mahatma Gandhi who said : Purpose of congress was to achieve freedom. It should now be dissolved.

from:  Prof K C Mehta
Posted on: Jun 14, 2013 at 11:13 IST

An extremely biased article! The writer forgets to mention how our "venerable" SC has shown a blatant and utter disregard for the Constitution it is based on. It is probably the only judiciary which can amend the Constitution (as shown in the collegium system) and get away with it. He fails to mention how SC & HC judges have an utter disregard for transparency, criticism and fairness. One can get arrested on contempt charges for complaining about the illegal land dealings of the son of a retired SC judge . The writer mentions Fali Nariman but he does not mention how Mr. Nariman opposes the collegium system. So does (Late) Justice J.S. Verma who considered the 1993 collegium judgement as the biggest blot on his judicial career

from:  K. Saurav
Posted on: Jun 14, 2013 at 11:13 IST

Hi,

Surely , the present collegium system has some drawbacks. The
executive should have a say in the appointment of the judges and it
should be transparent which can only be concluded with consensus on
both sides and not by unilateral actions.
According to me, there should be a some process to suspend the
judges when an enquiry is going on against them or any significant
allegations are made against them.
In case of Justice Dinakaran , he was transferred to sikkim after
allegations were made against him on corruption and judicial
misconduct. Could you please think , how much it demoralises the
people of sikkim to have such kind of judge? Do you think it is a
second rated state?
Hence proper checks and balances should be added in order to
maintain the independence of Judiciary as it is backbone of our
democracy.

from:  Tharun
Posted on: Jun 14, 2013 at 10:58 IST

A very well written article.This Government has lost all the right to rule after surfacing of countless scams and still it is in power by hook or crook.It is sad to see how this most corrupt government ever is trying to subvert every constitutional body be it CAD,appointment of judges.It is not just that UPA is involved in such huge number of scams.They have slowly destroyed the very strength of our country.Instead of making policies which are long term,feasible in long term and which will really empower poor people of our country and will provide means to live a decent life with proper employment and education they are making them dependent for every basic necessities with their short-sighted policies which are harming them then doing any good.No doubt instead of improving HDI of country has reduced from 119 in 2004 to 136 at present.The only aim what I feel this government has is to stick to the power.Whoever is coming in their way they are trying to remove them.

from:  Pooja
Posted on: Jun 14, 2013 at 10:53 IST

Supreme court has been cheered as the guardian of the constitution and given the current political crisis wherein corruption cases are rife it is lucid why union ministers are pressing for the government's say in the election of the judges.The author has rightly asked for the public protest in case the current government moves ahead with tampering the independence of the judiciary.

from:  raj kamal vatsa
Posted on: Jun 14, 2013 at 10:21 IST

It is wrong to compare the present administration’s alleged attacks on
the constitutional offices like the CAG, Judiciary and the election
commission with Mrs. Gandhi superseding some senior judges who decided
against the government. If one views the situation obtaining during
seventies it becomes clear that Mrs. Gandhi was being frustrated by
the leaders of Syndicate led by late Morarji Desai in initiating
progressive measures like nationalization of banks and abolition of
privy purses and for that reason she broke away from Congress and
formed her own party. When she initiated the progressive measures the
senior judges being referred by the learned author started frustrating
Mrs. Gandhi. It should not be forgotten that the single measure of
nationalization of banks has led to enormous growth of banking in the
country creating lot of employment and also banking facilities were
made available to the masses. The measure also saved India from the
global financial crisis.

from:  Baikadi Suryanarayana Rao
Posted on: Jun 14, 2013 at 10:15 IST

First of all, the media needs to take up this issue seriously and must
educate the public. I think the Corporate world, to which the political
class is getting sold off day by day is behind such a proposal to take
away Judiciary's independence -- the people of the nation must not
allow the vested interests to destroy the foundations of our country
which were laid with the blood of freedom-fighters. Hope the Congress
party loses power before it tries to pass any stupid law -- the nation
belongs to the people, not to the Congress Party.

from:  Yashwanth P
Posted on: Jun 14, 2013 at 10:12 IST

Political class is the most dangerous specie on earth, worse than Hyena
which eats its own offspring. Politicians should be given the most
innovative class award as they are very creative and efficient in saving
their interest. They are worse than a dictator, at least a dictator is
loyal to his country. They've always been a source of shame for our
country. But nothing can be done as we are the ones who elect them and
thus we have no right to complaint now.

from:  Akshay Dhadda
Posted on: Jun 14, 2013 at 09:59 IST

With due respect to the author, I disagree with his viewpoint. This
article is criticisng the Government proposal only on the basis of
what happened during the time of the Indira Gandhi era. I feel that
the author has not moved along with time. The current political
scenario is not the one like that existed 30-40 years back. Another
related flaw made by the author is extensively and confidently quoting
Justice Krishna Iyer's words on Judicial Independence. The Lordship
rendered those words in the background of the scenario that existed
during late 70s. I once again say that, such a political tyranny does
not exist now. Further, the criticism that the Government is trying to
regain the lost primacy lacks merit because the proposed 7 member
Committee to appoint judges include the Chief Justice of India and two
senior most judges of the Supreme Court as well.So the representation
of the Judiciary is not affected by this move.

from:  Sandeep Suresh
Posted on: Jun 14, 2013 at 09:50 IST

I sent an open letter to CJ of SC on 11th Feb. 2013 with copy to PM and CJ of AP with an urgent appeal to review the misuse of "not before me" and "quid pro co" clauses by judiciary and investigating agencies to protect their mentors and assault their mentors enemies. In this I also pointed out the recruitment policy of judges and requested to define PIL. I received no response but I saw a report that chief ministers and judges met in Delhi under the chairmanship of PM and discussed the judges recruitment through UPSC -- I mentioned this in my letter --, CMs supported but judges opposed it. As a result government decided to change the present system. Corruption form part of current system and also proposed new system. We are living with corruption in four pillars of our nation.

from:  Dr. S. Jeevananda Reddy
Posted on: Jun 14, 2013 at 09:24 IST

Mr Divan, you repeatedly mentioned subversion of the constitution. Please let us
know who is the culprit. As an imminent constitutional lawyer you should know that
primacy of the government or the Executive branch is in accordance with the
constitution. The Supreme court ruling to form collegium of judges for judges
appointed was the actual subversion. Where in the constitution says judges shall be
appointed by the fellow judges?

The only way to appoint impartial judges is through checks and balances, which is
practiced in every other democracies in the world except India. Only in India judges
appoint fellow judges. If politicians don't have the primacy then who should have? In America the judicial appointment is strictly a political process. The
president nominates any candidate meeting a minimum qualification followed by the
Senate confirmation. Judges have no say.

from:  Rajesh
Posted on: Jun 14, 2013 at 08:30 IST

This govt has undermined or is trying to undermine every institution in the country, we must
protect the independence of our judiciary.

from:  Gursharan singh
Posted on: Jun 14, 2013 at 07:46 IST

Collective Fascism in the guise of the elected is still fascism. Mr. Sibal, must learn that the people have a stake in the appointment of judges and not the government, as the government is only a temporary arrangement by the people, to govern and should not consider themselves to be the source of Justice, unparalleled wisdom, and untrammeled power. The tragedy of India is that a five decade power-hold by the party has corrupted the politics of the country, shaped by corruption of individuals and collective apathy of he people. Independent Judiciary is the only defensive firewall, the citizens have against the oppression by the “governors”. The people’s voices are suppressed by the laughter of the dangerous being known in the animal kingdom. Pandit Nehru built institutions, his daughter destroyed them, the followers are pounding the detritus so that no one can recognize even one brick.

from:  Ceeoren
Posted on: Jun 14, 2013 at 07:25 IST

A country needs to be adminsitered by a political power, answerable obviously to the people.While the majority should prevail, facts like withdrawal of certain social ,cultural rights to a section of people ,however minority they may be should not be bulldozed by the opinion of majority.This is where the rule of law and protection of judiciary comes in picture.Violation of such cardinal principles are at the root cause of anarchy in the long run.This is what we see in pakistan, afghanistan etc.
Unfortunately in our nation,the politics has been synonomous with petty corruption and here lies the role judiciary is required to play.In spite of many rules protecting privacy of individual's thoughts, actions we see the snooping by the state apparatus on our daily lives through monitoring of our activities etc.Through the new collegium system only the ruling elite is trying to legalize it!

from:  atis
Posted on: Jun 14, 2013 at 06:38 IST

Commission is likely to consist of seven members — the Chief Justice of India and two senior-most judges of the Supreme Court, the Law Minister, two eminent jurists nominated by the President, and the Leader of the Opposition. That means only 3 members are likely to be appointed from judiciary and other 4 are from political class(considering 2 eminent jurist nominated will have political influences). and our last hope for a fairer solution to all this corruption issues will be lost.

from:  ravi
Posted on: Jun 14, 2013 at 04:55 IST
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