Aiba Reference Collegium System

ALL INDIA BAR ASSOCIATION

108 & 130, Setalvad Lawyers Chambers Block, Supreme Court, New Delhi-110001 Tel +91-11-23074406, Mob: +91-9868510674

464, Chambers, Delhi High Court, New Delhi-110003; Mobiles: 9958177904, 9910063501

*Gaura Harish Kunj, DS-423/424, New Rajinder Nagar, New Delhi-60; Tel: +91-11-28743284, 28743285 Email: [email protected]; [email protected], [email protected]

Web: www.allindiabar.org

CHAIRMAN:

Dr. Adish C. Aggarwala, Sr. Adv. President, International Council of Jurists President, International Commission of Writers Convener, Indian Council of Jurists Ex. Senior Additional Advocate General of Haryana Ex. Addl. Advocate General of Punjab, T.N., U.P. Ex. Vice-Chairman, Bar Council of India Ex. Vice-President, Supreme Court Bar Association Ex. Chairman, Bar Council of Delhi

VICE-CHAIRMEN:

Mr. S. Prabhakaran Co-Chairman, Bar Council of India President, Tamil Nadu Advocates Association Ex. President, Madras High Court Adv. Association Organizing Secretary, Indian Council of Jurists

Mr. Ashok Mehta, Sr. Advocate Chairman, Bar Council of Rajasthan Ex. President, Jaipur Bar Association

Mr. Yatin N.Oza, Ex. MLA. Sr. Advocate Ex. President, Gujarat High Court Advocates Assn Secretary, India Legal Information Institute

Mr. B.D. Hiremath President, High Court Bar Association, Dharwad Ex. Vice- Chairman, Bar Council of Karnataka Ex. Member, Bar Council of India

Mr. Amarjit S. Chandhiok, Sr. Adv. Ex. Additional Solicitor General of India Ex.President, Delhi High Court Bar Association

Mr. Arun Kumar Tripathi Member & Ex. Chairman, Bar Council of U.P.

Mr. Anandkumar Appu Magadum Member & Ex. Chairman, Bar Council of Karnataka

Mr. Baleshwar Prasad Sharma Member & Ex. Chairman, Bar Council of Bihar

GENERAL SECRETARIES:

Mr. Partap Singh Ex. Chairman, Bar Council of Punjab & Haryana Member, Bar Council of Punjab & Haryana

Mr. B. Purushothama Reddy President, Federation of Bar Associations of States of Andhra Pradesh & Telangana Ex. President, A. P. High Court Bar Association

Mr. Shailendra Dubey Member, Bar Council of India Member & Ex.Chairman, Bar Council of Chattisgarh Ex. Hony Secretay,Chattisgarh High Court Bar Assn.

Mr. Radhe Lal Gupta Ex. Assistant Solicitor General of India Member & Ex. Treasurer, Bar Council of M.P.

Mr. Joydeep Mukherjee General Secretary, All India Legal Aid Forum

HONY SECRETARIES:

Ms. Razia Beg Member & Ex. Chairman, Bar Council of Uttrakhand

Mr. Prabha Shankar Misra Ex. Hony Secretary, High Court Bar Association, Allahabad

Mr. Ashwini Kumar Dubey Chairman, Jagriti D. Foundation

TREASURER:

Mr. Ajay Kumar Gupta Hony Secretary, India Legal Information Institute Ex. Jt. Secretary, Delhi High Court Bar Association

FOREIGN AFFAIRS DIVISION:

Mr. Abhinav Singh Convener, Foreign Affairs Division, AIBA Hony Secretary, India Legal Informational Institute

8.5.2015

His Excellency Honble 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






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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






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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.






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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 : Honble Mr. Narendra Modi, Prime Minister of India Honble 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)

Documents

Aiba Reference Collegium System