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Why was lawyer kin of then CJI made High Court judge, government asks Supreme Court

Mukul Rohatgi will adduce Thursday a chart with cases where recommendations made by the collegium were objected to by the government.

Written by Utkarsh Anand | New Delhi | Published: May 7, 2015 3:53 am
Supreme court, child, mother, child care, child custody, divorce, hyderabad couple, couple divorce, india news, nation news, national news, Indian Express In 2010, Justice Kabir’s sister, Shukla Kabir Sinha, was appointed as a Calcutta High Court judge after the HC collegium ignored Justice Bhattacharya’s objections.

Launching an offensive against the working of the “erstwhile” collegium system as it defended the new National Judicial Appointments Commission (NJAC), the government Wednesday asked the Supreme Court why a 59-year-old woman lawyer, who happened to be a close relative of the then Chief Justice of India, was appointed as a judge in the Calcutta High Court.

Attorney General Mukul Rohatgi said that one of the five judges in the High Court collegium, who had opposed this, had also written a letter complaining that his elevation to the top court was blocked since he objected to the appointment of the woman lawyer on the grounds of poor practice, below average educational skills and her advanced age.

“I dare say this but there are several examples like this. And what was the weightage given to the letter written by a fellow judge? How was that not important to collegium?” Rohatgi asked a Constitution Bench led by Justice J S Khehar.

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In 2013, after being overlooked for elevation to the Supreme Court by a collegium headed by the then CJI, Altamas Kabir, Gujarat High Court Chief Justice Bhaskar Bhattacharya had sent a letter to the President, Prime Minister and the CJI. He alleged that Justice Kabir impeded his elevation because, as a HC collegium member, he opposed the appointment of Kabir’s lawyer sister to the bench.

In 2010, Justice Kabir’s sister, Shukla Kabir Sinha, was appointed as a Calcutta High Court judge after the HC collegium ignored Justice Bhattacharya’s objections. The SC collegium approved the appointment although Justice Kabir was said to have recused himself from the meeting.

When the bench asked why did the government agree to appoint her, the AG replied: “Why did the four judges of the High Court do it? Judges have more legal knowledge than the government for sure and that has been the argument throughout.”

Rohatgi argued that the collegium maintained opacity and the top court kept asserting its powers relating to appointments and transfers of judges by virtue of its 1993 judgment in Second Judge’s Case when no such exclusive authority was accorded to it under the Constitution.

“How can a judgment say whatever transfers judges do, it would be deemed to be in the interest of justice? How can a judgment take away power of judicial review which is one of the facets of the basic structure? The 1993 judgement does it and that is why it must be struck down,” he said.

Describing them as “unfortunate happenings,” Rohatgi pointed out there were illustrations where transfers were done not in the interest of justice but for other considerations. “There were doubts of very serious nature, as happened in Justice Dinakaran’s case. He was the chief justice himself at Karnataka High Court. He was supposed to come here (to SC as a judge) but he was sent to another High Court. All this give a bad name to the institution,” he said.

The collegium had initially cleared Justice Dinakaran’s name for appointment as a SC judge in 2009 but after the government raised an objection, an inquiry was conducted. He was, however, transferred to the Sikkim High Court in the wake of corruption charges against him. Pending impeachment proceedings, Justice Dinakaran resigned in 2011.

Responding, the bench said it was the government’s duty to collect information about the judges and that it was concerned about people’s conduct only between 10 am and 4 pm when the courts functioned.

Rohatgi, however, said that the 1993 judgment held that judges take into account even the personal traits of the person to be appointed as a judge and, hence, it may not be right for the bench to say that people are judged only during court hours.

He added all this could be a “joint problem” and a “problem with the system” but the government alone could not be blamed for everything. The bench advised the AG that he should argue on principles rather than on individual cases, to which Rohatgi finally agreed.

The AG will adduce Thursday a chart with cases where recommendations made by the collegium were objected to by the government.

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  1. J
    May 7, 2015 at 5:07 pm
    Only difference between india and stan is supreme court. ..Please do not play with the judicary
    1. K
      K S
      May 8, 2015 at 1:11 am
      The arguments advanced by Mr Mukhul Rohtagi are par excellence. I've never a seen a lawyer supporting the Government so clearly and forcefully during my stint as a lawyer for the last twenty nine years at Punjab and Haryana High Court at Chandigarh. The lawyers representing the cause of the Government generally gives in meekly to the Bench particularly when the clash is directly between the interest of Judges and the Government. The nine Judges Bench of 1993 is a living example of this had there been a prompt action by the Government and the then Government realised or apprehended the ultimate outcome of 1993 Bench the situation wouldn't have come too far that Judges felt denuded of Authority and Power in the matter of appointment of Brethern Judges with the advent of NJAC following 99th Amendment which I personally feel accorded much more authority to the Honbl'e CJI and two senior Judges of SC. None of the Democracies in the World has vested so much authority in Sitting Judges of SC in the matter of appointment of Judges to the Higher Judiciary. The then Government in fact was infested with corruption and wilting under the weight of its own wrong doings in selecting Judges whose anticidents during their stint as Lawyer were not up to the mark for elevation, a similar situation is in existence presently under the present collegium system. The broad vision of NJAC is to strike a balance and evolve a system which will justify the choice of a Lawyer tobe elevated to the Bench and reach a consensus on the appointment of a Judge to the Higher Judiciary. This is the essence of of Democracy that nobody should be permitted to be law onto himself vested with unitary powers besides our Consution too doesnot permit such a set up for any selection or appointment either to the Government or Judiciary. Mr Rohatagi is very much right in putting up a lists before the Five Judges Bench wher in Government objected to the appointments but in fact there is yet another long list of the Judges who are Juniors of the Lawyers elevated to the Bench whether only those lawyers whose Bosses happen to be the Judges deserved elevations who in turn have repaid their one time seniors by elevating their relatives or sons either to the Bench or designated as senior counsels, Alas! at an unimaginable tender age with top points and the big chain continued unbroken. The present CJI has himself admitted that competent senior counsels cease to have interest in elevation at the top of their career, so what kind of the Lawyers are elevated can well gauged from his statement that too in the Public. The entire Prliament has ped the 99th Amendment to the Consution bringing NJAC that is not only voice of the people of India, but also do not violate any rights and is not in contravention to Article 13 of the Consution in any manner, the present PIL is nothing but a ploy of vested interest desirous of perpetuation which is not permissible in the Consution of India hence these peions deserve dismissals on the very onset arguments. The 1993 Judgment is really a State within the State itself and do not fit into the spirit of our Consution. I, therefore pray before the Honbl'e Bench of Five Judges headed by Mr Justice J S Kher to dismiss these PILs and pave the way for functioning of NJAC in the interest of Justice.
      1. M
        May 8, 2015 at 5:24 am
        Any one remembers Abhshek Many Singhvi. The lady high court lawyer who was filmed with him was pleading to become high court justice. Video was on media and may be now available. Why did courts did not take suomoto cognizance that time? Few of Justice Kabirs judgement were matter of investigation as per case filed by NGOs. Nothing happened. Salmankhan got bail in hours. Teesta Setlwad by phone. In New York Times there was article of one lady spending 18 years in jail as she could not raise 5000 re. For bond! All under trials who spent half of the term if they are convicted should have been released by December 2014 as per Supreme Court. Do you know any body who was freed due to that recommendation or order by SC? Its courts for rich and affluent people not for common people's justice.
        1. A
          May 7, 2015 at 7:07 am
          Didn't the court asked itself where has the collegium system erred. when the government started taking names, the judges want to talk on principles... ha ha.. in India nobody wants to give away their powers
          1. A
            May 7, 2015 at 9:08 am
            If SC is concerned about people’s conduct only between 10 am and 4 pm when the courts functioned and not care / know what people do beyond such hours & holidays, it can not be trusted to appoint judges exclusively.
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