‘Remove bar on giving advice to ministries directly’

'Remove bar on giving advice to ministries directly'
‘Remove bar on giving advice to ministries directly’

Attorney General Mukul Rohatgi has urged the government to junk a rule which bars him from giving legal advice to various ministries without involving the Law Ministry, saying it delays decision-making on important matters.

Rohatgi has also said the rule which requires law officers to give legal opinion to various central ministries and departments only when the issue is referred to them by the Law Ministry runs contrary to constitutional provisions.

In a recent letter to Law Minister Ravi Shankar Prasad, the top law officer said various ministries, departments and even ministers have declined to route their requests for his legal opinion through the Law Ministry due to urgency of the matter.

Copies of the letter have been sent to Finance Minister Arun Jaitley and Nripendra Mishra, the Principal Secretary to the Prime Minister.

He said if every such proposal was routed through the Law Ministry, the entire work would come to a grinding halt and no urgent remedial measure could be taken since the Law Ministry takes it own time.

Rohatgi made it clear that while he is not blaming ministry officials for the delay, the procedure is such that it is bound to take time.

Referring to Rule 8(e) of the Law Officers (Condition of Services) Rules, 1972, he said it provides that unless a reference is received from the Law Ministry, no advice will be given to any ministry or department.

Rohatgi said the rule runs contrary to Article 76 of the Constitution which states that it shall be the duty of the Attorney General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President.

He urged the government to revoke the rule at the earliest.

From time to time, successive law secretaries have been urging law officers against bypassing the Law Ministry while giving legal opinions to central ministries, departments and PSUs.

( Source – PTI )

Decide death row convict’s plea in 2 months:SC to HC

The Supreme Court today asked the Delhi High Court to decide within two months the plea of a death row convict seeking commutation of his sentence to life imprisonment on the ground of delay to decide his mercy petition.

A bench comprising Justices Dipak Misra and R Banumathi passed the order after taking into account the submission of Attorney General Mukul Rohatgi who said if the apex court would go into the legal issues concerning jurisdiction of high courts the delay would benefit the death row convict.

The apex court’s direction came while disposing of the transfer petition of the Chhattisgarh government which alleged that the Delhi High Court has no jurisdiction to stay the execution of a man held guilty of murder of five persons, including two children, in 2004 in its territory.

The high court in its December 6, 2016 order had said the rejection of mercy petition by the President “does give rise to a cause of action at Delhi”.

It had on March 2, 2015 stayed the execution of Sonu Sardar after which the Chhattisgarh government approached the Supreme Court challenging its jurisdiction to hear the matter.

The state government had told the apex court that the high court had no jurisdiction to stay the execution of convict Sonu Sardar as the offence had taken place in Chhattisgarh.

The Supreme Court had in February 2012 concurred with the findings of two courts below and upheld the punishment. His mercy petition was also dismissed by both the state Governor and the President of India.

In February 2015, the apex court had also rejected his review plea.

Sardar in his plea before the high court had contended that there was a delay of two years and two months by the President in deciding his mercy plea.

He had also sought commutation of his death sentence to life imprisonment on account of delay in deciding his mercy plea as well as for allegedly keeping him in “solitary confinement illegally”.

Sardar, along with his brother and accomplices, had killed five members of a family, including a woman and two children, during a dacoity bid in Chhattisgarh’s Cher village on November 26, 2004. The trial court had awarded death penalty to him which was upheld by the Chhattisgarh High Court.

SC reserves order in call drop case

trai-lThe Supreme Court on Tuesday reserved its order on the telecom companies’ plea against the Delhi High Court order making it mandatory for cellular operators to compensate for call drops.
The Delhi High Court had earlier this year upheld October 16, 2015 decision of Telecom Regulatory Authority of India (TRAI), making it mandatory for cellular operators to pay consumers one rupee per call drop experienced on their networks, subject to a cap of Rs 3 a day.

The TRAI on Tuesday told the Supreme Court that the telecom companies should have enforced call drop regulation before challenging it in the court.

During the hearing of the call drop compensation matter, the TRAI said, “Telecom companies are only interested in filling its coffers. They are responsible for majority of call drops.”

Arguing for the regulatory body before the apex court, Attorney General Mukul Rohatgi had earlier on Thursday said there is a cartel of four-five players in a country of a billion, which earn huge revenues and couldn’t be bothered about consumer satisfaction.

He had also said the companies were earning up to 61 percent profit but only investing five percent in infrastructure and were only interested in signing up more subscribers without fixing call drops.

Refuting to his accusations, the telephone service providers said that the authorities should not use such harsh language at any forum.

Calling the remarks “misplaced, baseless and rather misleading”, the telecom companies in a statement on Friday said they are ‘surprised and are deeply dismayed’ by the fierce attack on them by the regulator while arguing against a petition filed by carriers against a Delhi High Court ruling upholding TRAI penalties on call drops. (ANI)

NCA: SC to refer PIL to five-judge bench

NCA: SC to refer PIL to five-judge bench
NCA: SC to refer PIL to five-judge bench

The Supreme Court today said it may refer to a five-judge constitution bench a plea seeking setting up of National Court of Appeal with regional benches in major cities for deciding cases arising from high courts.

A bench headed by Chief Justice T S Thakur also sought Attorney General Mukul Rohatgi’s response on suggestions submitted by senior advocate K K Venugopal, who has been appointed amicus curiae in the case.

“K K Venugopal, amicus, has proposed certain issues that call for a more authoritative pronouncement by a larger Bench.

Attorney General Mukul Rohatgi seeks time to examine the issues, as formulated, and make his suggestions. Post on April 25,” the bench said.

The apex court also asked Rohatgi to assist Venugopal in formulating “suggestions and points” for its consideration in the case.

The apex court was hearing a PIL by Puducherry-based V Vasanthakumar pressing for setting up of a National Court of appeal at Chennai, Mumbai and Kolkata and quashing of the government order rejecting his proposal on the issue.

In February 2014, Kumar had moved the apex court with the same prayer when it had disposed of the matter directing the Centre to respond to his suggestion within six months.

Later, the Centre rejected his suggestion on the ground that it would require an amendment in Article 130 of the Constitution which “is impermissible as this would change the constitution of the Supreme Court completely.”

Vasanthakumar has now approached the apex court again seeking quashing of this decision of the central government.

( Source – PTI )

Judiciary independence doesn’t necessarily require collegium system

BJP-ruled states today strongly supported in the Supreme Court the creation of the National Judicial Appointments Commission (NJAC) saying that the independence of judiciary does not necessarily require that judges be appointed by the collegium system.

Senior advocate T R Andhyarujina, appearing for Maharashtra, told a five-judge bench headed by collegium systemthat the independence of judiciary does not necessarily require that the judges be appointed by the collegium system.

“In no country of the world, judges are appointed by collegium/judiciary. Instead it is done by the executive in consultation with judges”, he told the bench which also comprised justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel.
Besides Maharashtra, the counsel for BJP-ruled states, Rajasthan, Chhattishgarh, Jharkhand and Gujarat, also advanced arguments in favour of the NJAC and enabling 99th Constitutional amendment.

At the outset, Andhyarujina    said that the collegium system has “obvious problems”, which were “lack of transparency” due to the “secretive method” of appointing judges, “lack of accountability” and “lack of diversity”.

He said the basic question was whether there was a disruption of the basic structure of the Constitution and independence of judiciary by the NJAC.

The lawyer for Maharashtra said that “there is not a word” in the Constitution that the collegium system is a part of its basic structure or that it is the only method of appointing judges.

“The character of a judge and his independence does not follow from the method of his appointment and a judge is independent because of his oath and character,” he said, adding that the independence of judiciary was not a result of the method of its appointment.

He also gave instances, like that of Justice V R Krishna Iyer, where judges decided cases without any “fear” or “favour”.

“There is no basis that independence of judiciary can be secured only by appointment of judges by judges or by according primacy to their opinion,” he further said.

The bench asked Andhyarujina whether there was a constitution in the world where the independence of judiciary is as “sacrosanct” as in India.

Independence of judiciary is there but the “method of appointment was not the prescription”, he responded.

He also referred the Constituent assembly debates and quoted B R Ambedkar’s views on the issue and said that the architect of the Constitution had termed handing over primacy to CJI, on appointment of judges, as a “dangerous proposition”.

To this, the court said that Ambedkar was also against giving primacy to the President or the union government on the issue.

Attorney General Mukul Rohatgi in response clarified that the Constitution makers’ intention was to have a mix of power instead of vesting it in any one of the three organs of the State – executive, legislature and judiciary.

Andhyarujina said that there was no accountability or transparency in collegium system as it functions in secret and its working is not open to public view.

“In NJAC, there is total accountability and transparency,” he said.

To this, the bench said the Parliament should have laid down a law that working of the collegium has to be open to the public.

Andhyarujina also said that under the NJAC diversity in appointments made to higher judiciary was possible, as this factor was missing presently as there were few judges who were women, SC/ST or belonging to some other minority group.

The state of Jharkhand said “there was no participation of the Supreme Court” in a judge’s removal or impeachment, which does affect independence of judiciary, thus, it cannot have primacy in their appointment.

The bench, however, countered that the apex court is involved in the process as it carries out the enquiry to see whether a judge needs to be removed, after a complaint against him was received.

The Supreme Court Bar Association (SCBA), which has intervened in the matter, told the bench that if the petitions challenging the 99th amendment to the Constitution and the NJAC were allowed, it would amount to “whittling down” the power of Parliament to amend the Constitution.

The state of Chhattisgarh in its arguments said that while NJAC would provide a balance between the three organs, the judiciary was trying to exert primacy (by the collegium system.

The state of Jharkhand also said that in the NJAC, primacy of judiciary would be protected as of the six members of the commission, three would be senior judges of SC including the CJI, one would be the law minister and the other two “eminent persons” would be nominated by a panel of the prime minister, leader of the opposition and the CJI.

It said that while the judiciary may not have primacy in appointment, it would have primacy in blocking an “undeserving” candidate as only two members were required for that.

“So there is no question of an undeserving candidate being bought in. Therefore, primacy of judiciary is maintained under NJAC along with diversity,” the counsel for Jharkhand said.

Additional Solicitor General Tushar Mehta, appearing for Gujarat, said that the inclusion of two eminent persons in the NJAC is the will of the nation.

“The presence of two ’eminent persons’ in the Commission reflects the unanimous will of the nation and it can never affect the independence of the judiciary. The provision is made to ensure that the appointing body is broad-based and there is a transparency and an accountability in the matter of judicial appointments,” he said.

Senior advocate K Parasaran, appearing for Rajasthan, favoured the NJAC by calling it an “ideal mix” of judiciary, executive and the common public.

“Give it (NJAC) a try and see how it functions. It is better to do the trial and error than error and trial,” he said, adding that in the new system merit will also be considered with seniority.

Senior advocate and SCBA President Dushyant Dave did not support the Centre’s contention that the collegium system cannot be revived even if the court quashes NJAC Act.

At the fag end of the day, Dave started advancing arguments in favour of the NJAC and criticised the collegium system of judges appointing judges.

“I regret with all humility at my command that the majority judgement of the nine-judge bench in 1993 was singularly silent on the constituent assembly debates on the issue,” Dave said.

Dave, however, did not support the Centre’s contention that the collegium system cannot be revived if the court quashes the NJAC Act.

The plenary power of Parliament to amend law cannot be questioned, he said adding that the philosophy behind it was that present generation cannot bind the future generation.

Collegium recommended names despite adverse reports: SC told

Collegium recommended names despite adverse reports: SC told
Collegium recommended names despite adverse reports: SC told

The Supreme Court collegium recommended and reiterated the appointments of people as judges despite adverse Intelligence Bureau reports and judges’ critical comments against them, the central government on Wednesday told the apex court.

Attorney General Mukul Rohatgi on Wednesday submitted to the court a list of a few names running into 10 pages with comments from the Intelligence Bureau, the government and the apex court judges to drive home the point that when the collegium insisted on such recommendations, the government was bound to accept them.

“Sometimes, we are forced to choose somebody” that the collegium has recommended and reiterated despite adverse IB reports and critical comments by the apex court judges, Rohatgi told the court.

The government furnished the information to the court after it sought to know that in how many cases the collegiums reiterated recommendations despite adverse reports and government returning them.

Collegium system opaque and has failed: Attorney General Mukul Rohatgi

Attorney General Mukul RohatgiPutting up a strident case for the new system of judges appointment, government on Wednesday submitted before the Supreme Court that the collegium method has failed because it was an “opaque mechanism” which has “stifled democracy”.

On a day, Attorney General Mukul Rohatgi attacked the collegium system and demanded a revisit of the 1993 verdict by a larger bench, the court indicated that it can take a call on on the issue even before his arguments are over.

Continuing his arguments before a five-judge bench hearing the challenge to the National Judicial Appointment Commission (NJAC) Act, he asserted that “today democracy is back” with the bringing in of the new system.

The top law officer, who has been closely questioned by the bench for seeking revisit of the apex court’s 1993 verdict that gave primacy to Chief Justice of India in appointments to higher judiciary, said there was a lack of transparency in the previous system which has been evident from the fact that even under the RTI law entire information on the working of collegium system was not forthcoming.

“Why in the age of RTI, nobody is entitled to know what decision is taken by the collegium,” the AG told the bench headed by Justice J S Khehar and demanded the matter be referred to a larger bench than the nine-judges bench that gave the 1993 verdict.

He said a particular system of appointment of judges cannot be the “fulcrum” of independence of judiciary which is subject to “checks and balances” as enshrined under the Constitution and the new law has restored “democracy” in the process.

The bench, also comprising Justices J Chelameswar, M B Lokur, Kurian Joseph and Adarsh Kumar Goel, questioned the fairness in the Centre asking the matter to larger bench.

But it later relented saying it can take a call on referring the matter to a larger bench even before hearing the AG completely.

“We are recording what you are submitting. You continue and we can take a call on the issue of larger bench. It’s too important a matter to rush in,” the bench said and added, in a lighter vein, “the only grievance we have is that of too much of homework”.

“I want a clean slate so far as the bench is concerned. I am only pointing the facts before the court…Your Lordships will have to take call on it,” the AG said.

He said if the nine-judge judgement was not there, then “my case would have been better and a decision on it may be taken today itself”.

Rohatgi said the Constitutional amendment, paving the way for the the National Judicial Appointment Commission Act (NJAC), 2014 has to be tested under Article 124 as it existed prior to the SC verdicts.

“Article 124 (establishment and constitution of Supreme Court) was dissected into several parts such as the CJI will be the head of collegium. In case of final disagreement, the views of judicial body (collegium) will prevail. It means absolute power in the collegium.

“I dare to say let us call spade a spade,” he said, adding, “nobody is entitled to know the decision taken by the collegium”.

Rohatgi referred to constitutional schemes on higher judiciary saying “the independence of judiciary is subject to checks and balances and it cannot be insulated by adopting a particular method of appointment.”

He said the independence of judiciary can be found in the Constitution which guarantees various aspects like security of tenures and manner of removal of a judge.

“A particular process of appointment could be a point in the independence of judiciary but it could not be the fulcrum of independence,” the Attorney General told the bench.

The appointment procedure is not so “pivotal” to the independence of judiciary and the question which needed to be considered is whether the process is “so obnoxious” that it will hit the doctrine of “basic structure”.

“The Constitution only provides for ample maintenance of sufficient independence of judiciary and not absolute independence,” he said.

The top law officer, who in his day-long arguments dealt with issues like independence of judiciary and flaws of SC verdicts in 1993 and 1998, asked the court to decide to whether the matter would be decided by it or be referred to a larger bench.

He referred to the appointment process of the CAG and the Election Commissioners and said though they are appointed by the Executive their independence is ensured by the Constitution.

Hence, Rohatgi contended, that the appointment process cannot be the fulcrum of independence of a constitutional body like judiciary.

He said judiciary will have the primacy in the event of conflict of opinions and it will initiate the process of appointment have been brought into effect by the SC verdicts.

The law officer then dealt with the constitutional history leading to the collegium system and said that it all began in 1973 when a judge was “superseded” and after the emergency was imposed.

He also said the subsequent judgements have to be “seen in that light” and the nine-judge bench verdict “disturbed the checks and balances and entire equilibrium”.

The AG then questioned the reasons behind the 1998 verdict when the issues were already settled in 1993 and said that it came as the then CJI had asserted to the government that his opinion is the final opinion of the collegium.

Responding to criticism, the bench said “It is partly because of the executive’s failure,” as “whenever you (Centre) wanted to wink or blink, you did that.”

“The right to amend the Constitution is granted to Parliament by the Constitution and it can be struck down only if it violates the doctrine of basic structure,” Rohatgi said, adding the issues like composition of the six-member NJAC panel where judges can be in a minority cannot be a ground for striking down the law.

The Attorney General then referred to the debates in the

Constituent Assembly and quoted Dr B R Ambedkar and said that the judiciary can be given “as much independence as necessary for administration of justice” “nothing less and nothing much”.

Dealing with the doctrine of “basic structure”, he said the “checks and balances” and even the right to information may form part of the this doctrine.

There is nothing “absolute” in the Constitution and it never contemplated a situation as to what will happen if the President says “no” to a particular opinion and the second judges case of 1993 is “completely oblivious” of the checks and balance aspect and the “judgement requires reconsideration”.

The law officer said that the Centre has adopted a middle path by bringing the NJAC Act. In a democracy, he said the public is supreme and the judges “exist” because of the common people.

The AG also referred to members of the Constituent Assembly and said many of them were not advocates and yet they gave valuable inputs in framing the Constitution for free India.

Even, Jawahar Lal Nehru and Rajendra Prasad were not practising advocates and they were guided by the independence movement only, he said.

“I am saying this on the objections raised on two eminent persons who would be part of the NJAC,” he said.

At the fag end of the hearing, the AG again came back to the alleged flaws of the SC verdicts and questioned the reasons behind the 1998 collegium verdict.

“Three (members of collegium) shall become five is nothing but further legislation,” he said, adding that the apex court interprets laws and cannot make them.

“If the CJI symbolises the views of the judiciary then what happens to the points of views of 27 others judges of the apex court,” he said, adding “The CJI is a symbol like Pope and it cannot be like that”.

The AG then raised the issue of appointment of a 59-year-old person as a HC judge in the Calcutta High Court which led to “non-elevation” of a senior judge to the apex court as he had opposed the move.

“There is a clear example of the Calcutta High Court where a judge was appointed to the High court at the age of 59 years…” he said, adding that later the judge, who opposed the move, wrote a letter that he was not elevated as he had opposed it.

“Why the state government or the Government of India did not object,” the bench said and shot back saying, “recently the collegium, sent a name to you and you said no”.

“Giving examples or illustrations is not good. You talk on principles,” the bench said.

Rohatgi then also raised the issue that the collegium did not provide for the judicial review to the High Court judges against the transfers and cited the example of Justice P D Dinakaran, who later resigned.

“This is completely flawed and completely unconstitutional,” said the Attorney General who will continue with his arguments tomorrow.


Justice Khehar to head the Constitution bench

Justice J S KheharSetting at rest issues, the Supreme Court on Wednesday cleared the decks for commencing the hearing on the validity of the new law on appointment of judges with a Constitution Bench rejecting demands for recusal of judges.

“Justice J S Khehar will not recuse himself from hearing,” Justice J Chelameswar said on behalf of the five-judge bench which overruled the objection on Justice Khehar heading the bench. Justice Chelameswar said the reasons for the non-recusal of Justice Khehar will be delivered later.

The bench, also comprising Justices Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel, besides Justices Khehar and Chelameswar, said it will commence the hearing on April 27 to examine the validity of the new law–National Judicial Appointments Commission Act–which has been notified. It replaces the two-decade-old collegium system of appointment of judges to the higher judiciary. The court issued notices to the Centre, all state governments and union territories asking them to be ready with the matter which “purely involves the questions of law”.

The bench also asked Attorney General Mukul Rohatgi to take instruction from competent authority about the judges, particularly about additional judges in high courts whose tenure is coming to an end in the immediate future when the matter will be pending before the court. It said it will hear the matter tomorrow and after knowing the stand of the Centre. It will pass an interim order as this is a matter of concern and their fate cannot be kept in limbo.

Justice Khehar made it clear that the bench headed by him would like to complete the hearing and dispose of the matter in a particular time frame. 14 working days, starting from Monday onwards, would be sufficient to conclude the arguments and if required a day or two will be used during the summer vacation, he said.

A consensus was evolved that the petition filed by the Supreme Court Advocates on Record Association (SCAORA), in which senior advocate Fali S Nariman is appearing, will be the lead case among the batch of petitions challenging the validity of Constitution (99th amendment) Act 2014 and the NJAC Act, 2014, which pushes out the two-decade old collegium system of appointment of judges by the judges.


Uber rape case: Will lay down law on whether accused has right to recall witness, says SC

Uber rape caseThe Supreme Court on Wednesday said that it will lay down a law as to whether an accused has got the right to get witnesses recalled for their re-examination in a criminal case.”We are going to lay down the law that whether witnesses can be recalled at the behest of an accused,” a bench headed by Justice JS Khehar said.

The bench was hearing two separate petitions filed by the Uber rape case victim and the city police against the Delhi High Court order allowing the accused taxi driver to recall 13 prosecution witnesses, including the victim in the trial.

The bench, meanwhile, also summoned the trial court record of the case before it for next date of hearing on April 22.

It also asked the counsel for accused Shiv Kumar Yadav to furnish the documents, which are written in vernacular language, to the office of the Attorney General for their translation in English.

“You (counsel for accused) are the beneficiary of the (High Court) order and you are delaying the proceedings. It’s a matter having far reaching consequences. Since proceedings have already been stalled, we will not delay it further,” the bench said when Yadav’s lawyer sought six weeks’ time for filing his reply to the petitions filed by the victim and Delhi Police.

The bench has asked Attorney General Mukul Rohatgi and senior advocate Colin Gonsalves, counsel for the victim, to provide the list of judgements, their written submissions and said the translated copy of the records be submitted by the accused within ten days.

Earlier, on two different dates, the apex court had issued notice to the accused on the petitions of the 25-year-old victim and Delhi Police, respectively.

On March 20, the city police had filed the plea against recall of witnesses claiming that the High Court’s order to recall the victim as witness in the case would cause further harassment to her.

Quota for disabled can’t be confined, can be for promotion: SC

The Supreme Court on Friday held that three percent reservation for differently-abled persons cannot be restricted to entry level of government jobs and should be applied for considering promotions to Group A and Group B officers category.

“Why confined it to entry level? They are disabled means disabled. We seriously feel they should be given benefit at other level also,” a bench comprising Chief Justice HL Dattu and AK Sikri said.

“How do you expect disabled persons to compete with the abled persons,” the bench asked while dismissing the appeal filed by the Centre against the Bombay High Court order directing it and the Union Public Service Commission to implement a three per cent quota in direct recruitment and promotions for the disabled in the IAS.

Attorney General Mukul Rohatgi contended that reservation is counted on the basis of vacancy and not in the terms of the post.

He submitted that reservation on promotion is not the mandate of legislation, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, which was passed in 1995.

The AG said reservation can be applied in horizontal manner and not vertically.

The apex court did not agree to examine the issue in detail on the ground that there was difference in view between Bombay and Delhi high courts.