Home System concept Review advocacy in SC seeks to overturn collegial system for selecting judges, writes Olav Albuquerque

Review advocacy in SC seeks to overturn collegial system for selecting judges, writes Olav Albuquerque

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The 48e The statement by Chief Justice of India (CJI) NV Ramana that he intends to “Indianize” the courts to make them intelligible to rural populations is laudable although it is not clear how the 22 languages of the eighth appendix with their variants will be used in the courts. It is true that we have inherited a colonial justice system which is not accessible to poor villagers and, as Judge Ajit Shah held, perhaps it is time to end an opaque collegiate system of judges. naming themselves. Another retired judge like Judge Markandey Katju also holds the same opinion.

This is why a very ambitious request for revision filed with the Supreme Court aims to declare null the judgment instituting the collegial system of appointment of judges in 1993 because “it amounts to rewriting the Constitution, for which the Supreme Court has no power “, according to the prayer made in this petition. In all likelihood, this petition will be dismissed, without the media or legal journals becoming aware of it.

Defective system

But the faulty government and collegial system for appointing judges is proven by the fact that Judge KM Joseph was only elevated to the Supreme Court after the college reiterated his name a second time on the 16th. July 2018, despite government objections. . The college may have succumbed to government pressure to transfer Judge Akil Kureshi from the high court in Gujarat to the high court in Bombay, where he was lower on the seniority list.

Instead of transferring Judge Kureshi to the 85-year-old Madhya Pradesh High Court, where he was previously appointed Chief Justice, the college transferred him to the nine-year-old Tripura High Court with just four. judges. Now the college has mysteriously returned Judge Kureshi, who is less than six months away from retirement, to the high court in Rajasthan.

If there are any complaints against Judge Kureshi, the people who are the true guardians of the Constitution have the right to know about these complaints. And why the Chief Justice of the High Court of Karnataka, Abhay Oka, was elevated to the Supreme Court while Chief Justice Akil Kureshi, who ranks second in terms of seniority, has been replaced by his cadets. Sources allege that two members of the college opposed the elevation of Justice Kureshi to the Supreme Court, although Justice Rohinton Nariman opposes the elevation of those who are subordinate to Justices Oka and Kureshi.

Advocacy spirit

Regardless, lawyer Mathews Nedumpara, who was indicted by Judge Rohinton Nariman for committing contempt of court and barred for a year from appearing in the Supreme Court, has now made a comeback by filing this petition. in Review. The spirit of advocacy is to fight relentlessly for justice and that is exactly what lawyer Nedumpara does, said his colleague, lawyer Rohini Amin.

Nedumpara is the founder and president of a first generation lawyer movement known as the National Lawyers Campaign for Transparency and Judicial Reforms. He has faced contempt motions in the past, Judge Nariman recording that he had been informed of “cases and desperate attempts, intimidating the Court, to obtain discretionary orders, which no Court is otherwise ready. to give “. This petition for review aimed at overturning the collegial system of appointing judges may well be another “hopeless” case that could anger the ire of these learned judges, but which lawyer Nedumpara feels justified in filing to reform a system that the CJI Ramana has declared an urgent need for reform.

Nedumpara is not alone in his battle to overhaul the way judges are selected. Justice Jasti Chelameswar and his predecessor Justice Markandey Katju, both retired from the Supreme Court, opposed the collegial system of appointing judges. A third judge, Judge Kurien Joseph, who upheld the collegiate system in the 2015 NJAC verdict, publicly said he now regrets his ruling “after seeing it now.”

“Great mishap”

Katju called the college system “Pancha Pandavas,” which ignores everyone’s suggestions. “It’s a system where you accept my man, I accept your man,” the irrepressible judge Katju said. Nedumpara uses different words to express the opinion of Judges Katju, Chelameswar and Kurien Joseph.

He argues that a formation of nine Supreme Court judges substituted judicial legislation for the primacy of government in the selection of judges provided for in Articles 124 and 217 of the Constitution. This implied that the very establishment of the collegial system of appointing judges was contrary to reason and logic as no one can be a judge in their own case, according to Nedumpara.

Therefore, Nedumpara intelligently argues that “the Judges-2 affair led to the substitution of democracy by the ‘judiciary’ ……… ..so the Supreme Court, far from declaring the law of the land, now becomes the first legislature …. Articles 141 and 142 of today’s Constitution are something that the founding fathers could never have visualized ”, alleges Nedumpara who maintains that to save India as a constitutional democracy, judges cannot to choose themselves by judging themselves, which flouts the axiom according to which no one can be judge in his own cause.

“Article 141, a provision by which the concept of watch decisis or a binding precedent has been recognized by express terms, has become a power to legislate. Section 142 is now a provision which authorizes the Court to make any order it wishes, whether or not the parties who are aggrieved by the Court are before the Court or whether the function is the exclusive domain of the executive. », Nedumpara declares in his petition.

Seeking transparency

“The Judges-2 case by which the college system was invented turned out to be a great mishap. Even Judge JS Verma, who was an architect of the college system, later stated publicly that he never thought it would be such a great calamity. Shri Fali S. Nariman, whose observations were instrumental in framing the judgment in Judges-2, said in a chapter of his book, ‘Before Memory Fades’, that he wished he had lost the Judges-2 case, ”Nedumpara said. argued.

Nedumpara advocates for an open and transparent selection of judges by inviting applications and performing written tests, followed by an interview. Little discouraged by his previous contempt conviction, Nedumpara alleges that the majority of judges are friends and relatives, nephews or juniors of sitting judges and former judges of the Supreme Court and high courts, as well as famous lawyers, ministers in chief or governors.

But CJI Ramana is a judge who goes against this view, as he is a first generation judge and lawyer. Nedumpara concedes this but alleges that some of these first generation lawyers are politically linked or have ties to big industrial houses.

Hope is eternal

His petition contends that there is an insufficient number of judges selected from the 30 crore belonging to the SC / ST category. He claims 90 percent of the bar is made up of first-generation lawyers who may be sons and daughters of taxi drivers, farmers, fishermen, rickshaw pullers, daily bets, teachers. and others. “They have virtually no representation in the upper judiciary,” Nedumpara said.

An interesting argument is that if the government appointed judges in the manner done by the college, those appointments could be challenged in court through judicial review. But no judicial review opposes the selections made by the college which is sacrosanct and really not completely transparent even after the objections of Judge Chelameswar.

Justice Nariman, who retired from the Supreme Court last month, was lawyer Nedumpara’s nemesis. If he had not retired, he might have taken umbrage at Nedumpara by arranging a return to the Supreme Court arguing about what he would have called another “hopeless case” because, like Nedumpara’s would affirm, justice and hope flow eternally in the human womb. .

The writer has a doctorate in law and is a senior lawyer-journalist with the Bombay High Court.

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Posted on: Tuesday, September 21, 2021, 2:30 a.m. IST