Supreme Court, Centre Set For Slug Fest

At last, the inevitable has happened. What was considered as water shade so far, now has culminated into a battle of pride and prejudice between the two very important pillars of our largest democracy of the world.

Though the contentious matter of the supremacy to call the shots finally was boiling since the passing of the National Judicial Appointment Commission Act, (NJAC) and the existing system of Collegium devised by the judiciary, it was never thought that the things will take an ugly turn so rapidly.The acrimony between the CJI and Union Law Minister over the above said matter has reached the dangerous level of threatening the total breakdown of congenial atmosphere between the Executive and Judiciary without which no meaningful dispute resolution mechanism could even be imagined. While it is true that the NJAC is not a foolproof mechanism for the appointment of judges of the higher judiciary including the High Courts and the Supreme Court, it scores over the SC devised mechanism of Collegium in more than one way. It is also true that the NJAC Law has been struck off by a larger Bench of the apex court in exercise of its inherent powers of Judicial Review, still there seems to be no reason as to why they said verdict of the Supreme Court can't be re-looked by a larger Bench.

Indeed, it is strange that the Collegium system under which the 'Judges appoint the Judges' is practised in our country, is nowhere there in other democracies including the advanced nations like USA, Great Britain, Canada, Germany, France etc. The pick and choose method of selecting the judges of higher judiciary breeds nepotism, corruption and inefficiency. Further, such judges eventually fail to win over the much-needed trust of the people. Such a situation is not desirable since it may bring doom on the orderly manner of justice dispensation. The Collegium mechanism, in short, is nothing but ultra vires of the powers granted to the Apex court. Similarly, despite its shortcomings the law enacted by the parliament called NJAC Act and assented by the President of India being the reflection of people's collective wish ought not have been junked by the Supreme Court. Now that both, the power centres have come out in open flexing their muscles to prove their supremacy over the other, the gullible masses have been wondering as to what kind of democracy we have.

Today, the advocates of NJAC and collegiums system are clearly standing against each other. The bonhomie which used to be there in the past seems to have evaporated due to the indiscriminate use of collegium system by the higher Judiciary. Simply saying, the absolute power has corrupted the system as a whole absolutely. In fact, though unheard of its prevalence in any other democracy, the Collegium system per se is not bad so also the NJAC. What all is needed is the fine-tuned synthesis of the two.

To achieve this fine tuning what is required is the meeting of minds without any perceived notions or prejudices and an atmosphere of give and take between the top brass of the Executive and Judiciary. Both the stakeholders can agree upon a mechanism wherein an independent body of legal experts (and not necessarily retired or sitting Judges of the higher Judiciary alone) can be formed and that body should be entrusted the task of holding a written test to judge the potentials and ability of the aspiring candidates for the post of a High Court or the Supreme Court Judge. Finally, such shortlisted candidates, say in the ratio of one to five can be called for the interview by the Supreme Court's Collegium Committee to complete the selection process. The written test by an independent expert body will be doing the very essential work of filtration of undeserving, incapable and recommended candidates for judgeship. The whole mechanism of selecting the judges even by this process should be subject to periodical review.

To sum up, they will find a way. Our great democracy with its strong commitment to the lofty ideals of liberty, equality, unity, integrity and fraternity of people of all genres, creeds, colours, races, regions, and religions will certainly survive all upheavals of whatsoever nature.

BAI's CONCERN OVER CONTEMPT VERDICT

The Bar Association of India (BAI) has issued a statement of concern with reference to the contempt judgment passed by the High Court of Fiji against its senior lawyer Richard Naidu after the latter was found guilty of contempt scandalising the court.

BAI's president Prashant Kumar said that the conviction is based on a Facebook post in which Naidu allegedly pointed out, in a humorous manner, spelling errors in a judgment of the court. Te BAI stated that it is common across the world, particularly in jurisdictions which uphold the Rule of Law for members of the Bar to engage in comments on the court which extends to humour and added that the offence of 'scandalising the court' has been abolished in the United Kingdom and Law Commissions in both Australia and New Zealand have recommended the offence be abolished.

BAI called upon the Fijian Judiciary to play the role to protect the freedom of lawyers. It also appealed the Attorney General who initiated the contempt proceedings to a satisfactory closer by causing the conviction annulled.

SC REITERATES STAND ON BAIL BONDS

The apex court has observed that the provisions of Chapter VIII of the Code of Criminal Procedure are merely preventive in nature and they should not be used as a vehicle for punishment.

A bench of Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia while delivering the Judgment in a case titled, Istkar Vs. State of Uttar Pradesh said that the demand of excessive and arbitrary amount of security/ bond is impermissible as it stultifies the spirit of the Chapter VIII.

It may be noted that chapter VIII of the Code covering sections 106 to 112, empowers Magistrates to take security from a particular person for keeping peace or for maintaining good behaviour. In this case, the SDM while invoking his powers under section 107 of Cr. P.C had ordered one, Istkar to furnish a personal bond of Rs 5 lakh. The said Istkar allegedly violated the terms of the bond as a result of which his security bond of Rs 5 lakh was forfeited. In appeal, the Allahabad High Court upheld the Magistrate order. Istkar contended before the apex court that he is a daily wage earner and the amount of security bond was exceptionally high.

SUNANDA PUSHKAR'S GHOST HAUNTS THAROOR!

The plea of Delhi Police seeking condonation of delay in filing the revision petition against discharge of Shashi Tharoor was heard by a bench of single Judge Justice Dinesh Kumar Sharma on December 1. The Delhi High Court ordered notice to Shashi Tharoor, a Congress MP who was given clean chit by a Special Court in August 2021. The charges levelled by the police included offences under Sections 302, 306, and 498-A of IPC.