Mukul Rohatgi, Arun Jaitley
Mukul Rohatgi, Arun Jaitley
Litigation News

It took 45 years for Supreme Court to overturn ADM Jabalpur, hope it does not take that long to overturn NJAC verdict: Mukul Rohatgi

During a CAN foundation talk on Arun Jaitley, Rohatgi stated that the late Finance Minister was “deeply affected” by the Supreme Court striking down a law passed by the “will of the people", referring to the NJAC verdict

Debayan Roy

Senior Advocate Mukul Rohatgi while speaking on late former Union Minister and lawyer Arun Jaitley's perspective on justice dispensation commented on Saturday that some of the judges of the Supreme Court themselves now realize that overturning the National Judicial Accountability Commission (NJAC) Act was not the correct decision.

Speaking at a webinar organized by the Confederation of Alumni for National Law Universities ('CAN Foundation') on the former finance minister’s “Perspective on Justice Dispensation: Constitutional Expectations From Our Judiciary”, Mukul Rohatgi was questioned on what the late Arun Jaitley thought about the Supreme Court overturning NJAC citing a threat to the independence of judiciary.

Mukul Rohatgi, Saurabh Kirpal, Sriram Parakkat, Siddharth R Gupta
Mukul Rohatgi, Saurabh Kirpal, Sriram Parakkat, Siddharth R Gupta

Rohatgi stated that Arun Jaitley was “deeply affected” by the Supreme Court striking down a law passed by the “will of the people.”

"Mr Jaitley was involved in drafting the law. He was clear of the view that no where in the world, judges appoint judges. Executive appoint judges in the US too. However for our Supreme Court, consultation with the executive was interpreted as concurrence. Mr Jaitley was extremely affected by the NJAC verdict since the will of the people was turned on its head. He was firm in his view that the will of the people represented by law made by parliament should not be overturned due to private notions of a judge who is unelected and doesn't have grip on ground realities."

said Rohatgi.

Adding his own personal opinion, the former Attorney General said that the NJAC verdict would have led “Dr BR Ambedkar to turn in his grave.

“I cannot imagine that one sentence that President shall appoint a judge of the Supreme Court in consultation with the government. How can this mean consultation with CJI? Dr Ambedkar must be turning in his grave. This was originally followed in the 1950s. One part of the constitution cannot offend another part. If it had rough edges, it could have been taken care of but not strike it off. Justice DY Chandrachud overturned ADM Jabalpur in the KS Puttuswamy case. But it took 45 years. I hope it doesn't take that long for the SC to overturn NJAC verdict,” said Rohatgi.

Supreme Court lawyer and one of the moderators, Advocate Saurabh Kirpal questioned Rohatgi on what had led to the recent instances of High Court rulings not being given due weightage and thereby leading to the “emasculation” of the High Courts.

Saurabh Kirpal
Saurabh Kirpal

Squarely blaming the Supreme Court for this, Rohatgi stated that there was a time when High Court and Supreme Court judges were on the same footing, but after the “judges case” - when the Supreme Court decided to be the last authority to appoint judges - there started a system where a High Court judge began looking at a “superior.”

Rohatgi maintained that a High Court judge is never subservient to the Supreme Court and that there should be no instances where the Supreme Court is treated like a court of first appeal.

Recollecting his days with Arun Jaitley, Rohatgi stated that Jaitely was someone who was always interested in politics and that he lost a year of his law studies due to the ADM Jabalpur judgment.

"He was the first leader as a student who was arrested on day one leading a morcha in Delhi University fearlessly while a large number of older leaders were trying to hide. Mr Jaitley lost a year in the law faculty due to the ADM Jabalpur judgment. He was a very hardworking lawyer. We shared a chamber for 20 years. He was always ready to burn the midnight oil. From 1978 to 1998, politics was dominant but he focussed on his profession."

Mukul Rohatgi.

However, Jaitley maintained that though he was a commendable lawyer, his first love was always politics.

I have never seen a lawyer with as terrific a memory like Mr Jaitley. Suppose we see Guide, a movie, he remembered the hat and attire of the hero too,” recollected Rohatgi.

When another moderator, Advocate on Record, Sriram Parakkat questioned Rohatgi on what Jaitley felt about post-retirement benefits to judges, the senior lawyer stated that Jaitley always believed that with post retiral benefits, there was always a possibility that an “honest judge may be prone in shifting from a correct balance in a hope that he or she will be picked up for a post retiral position.”

Sriram Parakkat
Sriram Parakkat

Rohatgi also shed light on how Jaitley often mentioned the phrase “tyranny of the unelected.”

“He used to feel that a few gentlemen sitting in court who did not know ground realities would interfere. Especially when they are appointed and not elected. Even Dr Ambdedkar was uncomfortable with both a strong court and strong parliament. He said how a few gentlemen sitting in court could decide the validity of laws passed by parliament,” said Rohatgi.

On being questioned as to how the Supreme Court dealt with the COVID-19 pandemic and the emergency around it, the senior lawyer stated that issues like the Citizenship Amendment Act or National Register of Citizens were areas that led to protests and could have been heard and disposed of by the Supreme Court even though COVID-19 kicked in from between.

He also commented on how Supreme Court made a late entry into the migrants' scene when already millions were walking home on roads.

"I have argued cases in High Court for six to seven hours. The same can happen in the Supreme Court too by video conferencing. This was a Bandhua Mukti Morcha moment and the Court should have looked into it earlier. Our court is not a purely adjudicator court like we have in England,” said Rohatgi."

Mukul Rohatgi.

Watch the full talk on Video:

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