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[Webinar] Who Governs: Government, Parliament or the Judges? - LIVE UPDATES

A virtual discussion on the theme “Who Governs: Government, Parliament or the Judges” is being held today starting 4:30 PM IST.

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[Watch FULL VIDEO] Who Governs: Government, Parliament or the Judges? Lord (Peter) Goldsmith, Arvind Datar, Pratap Bhanu Mehta and Gaurav Pachnanda speak on a host of issues.

Posted by Bar & Bench on Sunday, August 2, 2020

Webinar ends.

'Who Governs': Webinar jointly organised by Lex Witness and Bar & Bench
'Who Governs': Webinar jointly organised by Lex Witness and Bar & Bench

We have conferred these powers on three different organs.

However, in a changing polity, there will be situations where one will do more. There could be concerns of overreach.

The answer to the question of who governs is, therefore, a question of who does not govern: Pachnanda

Senior Advocate Gaurav Pachnanda: Who ultimately governs may depend on who is not governing.

However, Datar adds, it ultimately depends on leaders.

If the leaders reach the stage of statesmanship, there will be a true separation of powers, he opines

Datar: Life is not perfect, there is bound to be overlap.

By and large, if the executive sticks to implementing the law, parliament enacts laws properly, and judges stick to their adjudicatory functions - it would be wonderful

Lord Goldsmith continues: In our system, the Parliament can overrule whatever the other says.

Lord Goldsmith speaks at the Webinar
Lord Goldsmith speaks at the Webinar

The Courts will continue to hold the Government to account and aid the Parliament to hold the executive to account.

If they all work together, only then will we have a fair system, he adds.

Q: Who Governs? Government, Parliament of Judges?

Lord Goldsmith: The correct legal answer is all of them in different capacities.

But that doesn't tell the whole story of what the political reality is.

Q: Do you think the exercise of PIL jurisdiction sometimes leads to the substitution of the judges' opinions, not backed by any substance?

Datar: Yes it does. Very often, it depends on who is the portfolio judge for a particular matter. A lot depends on individual perception.

Datar notes that in the case against Arundhati Roy, it was not right to invoke contempt against her.

The use of contempt jurisdiction in such cases is counterproductive, Datar opines.

He adds that ideally, the Court should introspect why it is being criticised.

Panelists answer question from Pallavi Saluja, Editor, Bar & Bench on contempt jurisdiction.

Arvind Datar notes that the Supreme Court has not been consistent in the exercise of its contempt jurisdiction.

Prof Mehta also comments that Pakistan's legal profession was much more active in combatting an executive overreach than the mightiest legal profession in the world - the Indian legal profession.

If the Supreme Court is the culprit and the legal fraternity doesn't up - when the legal profession does not display in public a commitment to basic Constitutional law - that damages the rule of law more than an erroneous judgement: Prof Mehta

Prof Mehta adds that senior legal counsels create a disproportional effect on influencing a legal culture, more than even judges sometimes.

When the top echelons of the legal profession institutionalise a culture which allows short shifts in Constitutional law, it legitimises a broader culture of impunity one way or another, Prof Mehta says.

Prof Mehta speaks on lawyers influence the rule of law and the sanctity attached to it.

Pratap Bhanu Mehta speaking at the Webinar
Pratap Bhanu Mehta speaking at the Webinar

No other profession can take the lead on this than the legal profession, he says.

Arvind Datar adds that it is time that clear rules be laid down for the filing of PILs.

Senior Advocate Arvind Datar speaking at the Webinar
Senior Advocate Arvind Datar speaking at the Webinar

Courts are not prepared to pass laws on aspects that have large ramifications: Arvind Datar

To illustrate where the Court has gone beyond its powers, Datar cites the BCCI case and Supreme Court imposing Diesal cess.

"It has gone out of hand."

The discretionary behaviour by the wings of the State, especially the courts, has effectively negated all the basic rules, Prof Mehta says, adding that there is:

  • no integrity

  • no predictability

  • no sense of where stare decisis applies and where it does not

Right now I cannot, in good conscience tell you what Indian Constitutional law is: Prof Mehta

He adds that he is often surprised when lawyers and judges profess to know what it is.

Prof Mehta adds that there are 2-3 long term causes for the growth of executive power, for instance

1. National Security Interests

Prof Mehta observes that it is difficult for the parliament and the courts to interfere when the State acts citing national security interests.

He refers to the fact that we have sedition law, UAPA - the fact that the State can do anything in J&K without the interference of the Parliament and the courts.

It takes a brave judiciary to take a stand. And unfortunately, the judiciary has let us down, he adds.

2. Growth of the Administrative State.

It takes an extremely sophisticated parliament to check on the growth of the administrative state, Prof Mehta says.

Senior Advocate Gaurav Pachnanda asks Prof Pratap Bhanu Mehta a question on the growth of Executive power.

Executive power - almost untrammelled power- has grown in Indian democracy, Prof Mehta says.

Arvind Datar adds that the NJAC act was flawed in terms of its Constitutional Amendment, and fatally flawed as far as the statute was concerned.

The goal is to get the best judges. Both the Collegium System and the NJAC are only a means to that end: Datar

The difficulty comes in when the goal is not to get the best judges, but rather to control the system, he says.

Datar adds that he would not say that the Collegium system is free from defects. But the solution is to iron out the defects through small changes within the system.

The system can be tweaked, he notes. To do away with the system is to throw out the baby with the bathwater.

The Collegium has given outstanding judges and has been able to block the appointment of certain undesirable appointments as well: Arvind Datar

Senior Advocate Arvind Datar fields question of the system of appointment of judges in India.

Datar says that there is no empirical evidence to state that the Collegium system has appointed less able judges than would have been done by NJAC.

Lord Peter Goldsmith responds to a question on why the UK has a Supreme Court now. In one sense, it is just a change of address, he notes, adding that the judges remain the same, the power remains the same. But, notwithstanding, it has been a major change, says Lord Goldsmith.

Webinar starts. It is being live-streamed on YouTube here:

A virtual discussion on the theme “Who Governs: Government, Parliament or the Judges” will be held today at 4:30 PM IST.

The panellists for the discussion are:

  • Lord (Peter) Goldsmith QC, PC, Former Attorney General of the United Kingdom and Chair of Europeana and Asian Litigation, Debevoise and Plimpton

  • Senior Advocate Arvind Datar

  • Pratap Bhanu Mehta, Academician and Political Theorist

  • Senior Advocate Gaurav Pachnanda

The discussion will be streamed LIVE on YouTube. Live updates from the webinar will feature on this page.

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