Mukul Rohatgi
Mukul Rohatgi
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"Supreme Court should graciously give up its right to be the sole body to appoint Judges", Senior Counsel Mukul Rohatgi

While delivering an online lecture, the former Attorney General opined that the Supreme Court should graciously give up this sole right, given that it is "contrary to the Constitution."

Shruti Mahajan

In an online lecture delivered by Senior Counsel Mukul Rohatgi as part of the Prof. N.R. Madhava Menon Memorial lecture series, the former Attorney General said that it is his belief that the Supreme Court should give up its right to be the sole appointer of Judges.

Rohatgi was speaking on the subject of the "Journey of the Supreme Court from 1950 till now" in an online lecture organised by the Akhil Bharatiya Adhivakta Parishad.

During his talk, Rohatgi observed that in no other country do the Judges solely have the right to appoint themselves. Rohatgi was speaking about the Supreme Court's rejection of the National Judicial Appointment Commission (NJAC) in the NJAC judgment.

"no other country do the Judges solely have the right to appoint themselves"
Former Attorney General Mukul Rohatgi

The proposed NJAC in a way diluted the Supreme Court's existing powers to appoint Judges solely through its Collegium system, given that it envisaged setting up of a "wholesome commission" consisting of the senior Judges of the Supreme Court along with the representatives from the Government, the Leader of the opposition and Independent legal persons for the appointment of Judges.

The Supreme Court, however, struck down the NJAC Act of 2014 which proposed such a body to be formed and retained the Collegium system for appointment and transfer of Judges. However, Rohatgi believes that as a way forward, the Supreme Court should graciously give up this sole right, given that the same is "contrary to the Constitution".

"Appointment to the Supreme Court should be on merit where seniority may play a part but does not outweigh merit."
Mukul Rohatgi said.

As the trend exists, mostly only the Chief Justices of the High Courts are elevated to the Supreme Court and in very handful of cases have judges been elevated without them being the Chief Justice of the High Court first, Rohatgi said. He, however, opined that the elevation to the Supreme Court should be based on merit, not seniority alone.

Rohatgi also narrated the story of the "open secret" of the rivalry between two former Judges of the Supreme Court, Justices PN Bhagwati and then Chief Justice of India, Justice YV Chandrachud, which is also said to have stemmed from the question of seniority.

"Open Secret" of the rivalry between two former Judges of the Supreme Court, Justices PN Bhagwati and then Chief Justice of India, Justice YV Chandrachud stems from seniority
Mukul Rohatgi

This feud, which is an open secret, Rohatgi said, has been chronicled by Justice YV Chandrachud's grandson, Advocate Abhinav Chandrachud, in his book.

Highlighting an important development in the journey of the Supreme Court, Rohatgi said that it was because of Justice Bhagwati that the PIL system came into being. The former AG credits Justice Bhagwati as the "pioneer of the PIL system" and says that this system was revolutionary in a way that it did away with the requirement of a formal petition to bring an important issue to the notice of the Court. The same could be done by way of writing letters and postcards to the Chief Justice of India.

The first case under PIL system was one about bonded labour in the case of Bandhua Mukti Morcha, brought to the Court's attention by Swami Agnivesh, Rohatgi recalled.

Rohatgi's lecture focused on each of the decades in the life of the Supreme Court since 1950 until now.

He said that from intending to being a small cohesive Constitutional Court back in 1950, the Supreme Court has grown into an institution with a strength of 34 Judges. From what was supposed to be a Court that decides only on grave Constitutional questions, the Supreme Court has now virtually become an appellate Court, albeit with vast jurisdiction, he added.

The role of the Supreme Court, Rohatgi said, was to test whether any legislation passed by the Parliament fits within the parameters of the Constitution which is supreme. The lecture, therefore, delved into the details of various landmark judgments by the Supreme Court such as the rulings in the Golkanath case, Kesavananda Bharati case, ADM Jabalpur case, and the Coelho case.

Rohatgi termed the 1970s as the stormiest and the most turbulent decade in the life of independent India as well as the Supreme Court owing to the Emergency, the ADM Jabalpur case judgment delivered at the time, the dissent of Justice HR Khanna in the case and his supersession for the post of Chief Justice of India.

Justice HR Khanna, Rohatgi pointed out, has been immortalised because of his dissenting judgment, whereas the majority judgment delivered in the case often criticised. Justice DY Chandrachud, son of Justice YV Chandrachud, overruled his father's judgment in the ADM Jabalpur case, 45 years later in the case of Justice KS Puttaswamy vs UOI, Rohatgi said.

Among the recent judgments delivered by the Supreme Court, Rohatgi highlighted the verdicts such as decriminalization of consensual same-sex relations, upholding right to privacy as a fundamental right under Article 21, among others, while being critical of the Court's decisions such as quashing of the coal block allocation.

The ongoing pandemic has brought in the new practice of holding hearings via video conferencing which has been laden with issues of its own, but Rohatgi said that with this practice built and developed, can be fruitful for the Bench and the Bar.

The former Attorney General also gave everyone food for thought in his lecture while raising questions regarding the propriety of the power of a judgment delivered by a thin margin to overrule an unanimous judgment merely based on the strength of the Bench.

Bench of 13 judges, even if passed by a 7:6 majority would have precedence over an unanimous judgment of a 9-Judge Bench
Mukul Rohatgi

Ours is a precedent-based judicial system, Rohatgi explained, adding that a judgment by a Bench of 13 judges, even if passed by a 7:6 majority would have precedence over an unanimous judgment of a 9-Judge Bench. How far would this be fair, Rohatgi questioned.

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