26\\Kumar\d\d data\cdrive\V.K. 2015\NJAC\Note - Nation Wants It.docxSOME PRELIMINARY OBSERVATIONSPART-ITHE NATION WANTS IT!

Legal points apart, the single most persistent and evocative argument in the present case has been that the NATION WANTS IT! I may be permitted (somewhat impertinently) to ask which NATION? The NATION of the haves OR the Nation-of-the-have-nots? (we have an abundance of the one and a super-abundance of the other); the NATION of the rich, prosperous and influential? (whose members are fast increasing). Or the Nation of the poor and needy (whose condition, hopes and expectations have not markedly improved over the decades.

Just as Justice Chinnappa Reddy had said in Sanjiv Coke[footnoteRef:2] (speaking for the Constitution Bench): no one may speak for Parliament and Parliament is never before the Court, I would respectfully suggest that no one may speak (or claim to speak) on behalf of the NATION; and the NATION is never before the Court. [2: 1983 (1) SCC 147 (5J) at page 172 (part of paragraph 25). ]

In respect of a constitutional amendment: even Parliament cannot speak or claim to speak on behalf of the people because: (i)the power of Parliament as a constituent constituted body to make a constitutional amendment is no longer an unlimited power but a limited power (limited by the basic structure doctrine); first enunciated in Keshavand Bharti (1973); and (ii)our Constitution has made no provision for a plebiscite or does not provide for a referendum as a means of passing or approving of a constitutional amendment. How then is it to be is ascertained as to what THE NATION WANTS? Learned pundits around the world have recommended the institution of a plebiscite or Referendum which is however tentative, never fool-proof, nor really representative of the collective views of the people, but then no one has yet devised a reliable method of ascertaining the wishes of the people.

In the present case what is at issue at the start (and at the end) is the PRIMACY OF THE JUDICIARY: a concept perennially anathema to the peoples elected representatives in Parliament and in State Legislatures as shown below:

(a)Soon after the decision in GOLAKNATH (1967 6:5 (Bench of 11 Judges) which declared a constitutional amendment to be law in Part III, and therefore subject to the constraints in the Fundamental Rights Chapter, Parliament as a constituent constituted body (a phrase invented by Justice Hidyatullah and mentioned in his concurring judgment in GOLAKNATH: for differentiating between the Constituent Assembly that drafted the Constitution and the constituent body mentioned in Article 368) Parliament as a constituent body got passed the Constitution 25th Amendment Act 1971 reading as below:Article 31C (as inserted with effect from 20.4.1972)

3. Insertionofnew article31C. Afterarticle31Bof the Constitution, the following Article shall be inserted, namely:-

"31C. Saving of laws giving effect to certain directive principle:-

Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:

Providedthatwhere such law is made by the Legislature of aState, theprovisionsof this article shall not apply theretounlesssuch law,having been reserved for the consideration of the President, has received his assent."

In Keshavananda Bharti Sripadgalvaru v. State of Kerala (Bench of 13 Judges constituted to reconsider Golaknath) 1973 Supp. SCR 1: 1973 (4) SCC 225: AIR 1973 SC 1461, the Supreme Court overruled GOLAKNATH (10:1) but held (6:5) part of Article 31C (shown) in italics above as invalid and unconstitutional on the basis of the doctrine of basic structure [judicial review being invoked as part of the basic structure of the Constitution]

(b)Over a year later, On 12th June 1975, the Allahabad High Court held in Raj Narains Election Petition challenging the election (to the Lok Sabha) of Mrs. Indira Gandhi (later Prime Minister) that the petition had to succeed on merits. Mrs. Gandhi filed an appeal from the decision to the Supreme Court of India. Pending this appeal. Parliament then passed (hurried through in three days in early August) the Constitution 39th Amendment Act 1975.

The amendment introduced sought to make special provision as to elections to Parliament inter alia in the case of a Prime Minister and provided that where any person has been appointed as Prime Minister while an election petition of his election to either House of Parliament is pending, such election petition would abate upon such person being appointed as Prime Minister, and that no law made by Parliament before the commencement of the Constitution 39th Amendment Act, in so far it is related to election petitions (inter alia against the Prime Minister) would apply or be deemed ever to have applied to or in relation to the election of that person, and that such election shall not to be deemed to be void or ever to have become void on any ground on which such election could be declared to be void, and would continue to be valid in all respects; it further provided that any finding by any Court would itself be deemed to be void and of no effect; and that any pending appeal before the Supreme Court of India (by any such person) would be disposed of in conformity with the provisions of the Constitution 39th Amendment Act.

The relevant part of Article 329A where the new provision was inserted validating inter alia the election of Mrs. Indira Gandhi (an election set aside by the High Court of Allahabad) was declared by the Supreme Court of India to be unconstitutional: following the majority view in the Bench consisting of 13 Judges: Indira Gandhi vs. Raj Narain reported in 1975 Suppl. SCC 1 was the first case implementing the Basic Structure theory. The Court criticised the Constitution 39th Amendment Act, as a negation of the Rule of Law, anti-democratic, lawless and one which denied equality before the law.

The Comment on the Constitution 39th Amemdment of Justice Ruma Pal who has updated M.P. Jains Indian Constitutional Law, 6th Edition (2013) is relevant. The comment reads: (pages 2408-2409 Vol. II) No one can imagine a greater misuse of the power to amend the constitution than what is represented by the XXXIX Amendment when just to validate the election of one person, the Constitution was drastically amended. The Supreme Court rendered a yeoman service to the Constitution by vetoing such a distorted law.

The case provides sterling testimony to the worth of the doctrine that the fundamental features of the Constitution could not be amended. There always lurks the danger that the ruling party with the help of its majority in the two Houses of Parliament may introduce distortions in the Constitution to suit its own political agenda. It may be remembered that to keep herself in power. Prime Minister Indira Gandhi even imposed the emergency on the country in 1975.

Note:-The Constitutional amendment along with the law challenged in these petitions are an instance of one such distortion.

(c)As an answer of Parliament to the striking down of the material parts of Article 329A of the Constitution, Parliament amended (by an overwhelming majority of its members) Article 368 of the Constitution by the Constitution 42nd Amendment Act, 1976, by adding Clauses (4) and (5) to Article 368 which read as follows:

[(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.][footnoteRef:3][(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.] [3: Ins. By the Constitution (Forty-second Amendment) Act, 1976, sec.55 (w.e.f. 3.1.1977). clauses (4) and (5) which were inserted by section 55 of the Constitution (Forty-second Amendment) Act, 1976 have been declared invalid by the Supreme Court in Minerva Mills Ltd. v. Union of India, 1980 (2) SCC 591.]

The insertion of Clause (4) and (5) in Article 368 was challenged, and Clauses (4) and (5) were held to be invalid and unconstitutional by a unanimous decision of a Bench of 5 Judges of the Supreme Court of India in Minerva Mills (1980 (3) SCC 625).[footnoteRef:4] Justice Chandrachud and Justice Bhagwati were at one in striking down this part of the Constitution 42nd Amendment Act, as invalid and unconstitutional. [4: Minerva Mills 1980 (3) SCC 625 para 17 and 88 Chandrachud J.: 17. Since the constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.Bhagwati J.: 88. Therefore, after the decisions in Kesavananda Bharati case and Indira Gandhi case, there was no doubt at all that the amendatory power of Parliament was limited and it was not competent to Parliament to alter the basic structure of the Constitution..]

(d)Since there had been a challenge to Clauses (4) and (5) of Article 368 of the Constitution 42nd Amendment Act, 1976 whilst this challenge was pending Parliament attempted another stratagem to avoid what was regarded in political circles as judicial interference in the working of Parliament. The Lok Sabha passed again by an overwhelming majority; the Constitution 45th Amendment, Bill No. 88 of 1978 which for the first (and hopefully, for the last time) sought to adopt the route of a referendum to obviate application of the Basic Structure Doctrine. It declared inter alia in the Proviso to Article 368(2) that a law compromising the independence of the judiciary which would require a ratification by one-half of the States would become unchallengeable if adopted by simple majority vote (51 per cent) in a referendum. For the first time the Government of the day had revealed its hand that the Independence of the Judiciary may be compromised or at least an attempt would be made.

(e)Fortunately for democracy, the Rule of law and the Independence of Judiciary, the Constitution 45th Amendment Bill No.88/1978 Clause 45 of the Bill (relating to Article 368) failed to pass but not because Parliament negatived the amendment. On the contrary, the Lok Sabha passed the 45th Constitution Amendment Bill by an overwhelming majority of members, but in the Rajya Sabha only a bare majority supported the amendment not the two-thirds required to pass a Constitutional amendment. The propounder of the Bill (it was not the same political party that had brought in the Emergency of June 1975 but this time it was the Janta Party (which had been protesting against the Emergency) and members of whose party had been confined in preventive detention whilst it lasted they had been swept into power on an anti-Indira Gandhi wave at the elections of March 1977 and the first thing they did to celebrate was to attack the Independence of the Judiciary as a concept! The Government of the day tried to get rid of the concept of Independence of the Judiciary by submitting to a referendum that would validate compromises to the independence of the Judiciary which when passed by a 51% vote at the referendum would become un-impeachable as a constitutional amendment. Fortunately it was not to be.

(f)Attempts to control the judiciary continue unabated in recent times as well as stated herein below: (i) On 10.7.2013 two separate judgments of the Supreme Court of India were handed down: viz. In Lilly Thomas vs. Union of India this Honble Court held invalid and unconstitutional Section 8(4) of the Representation of People Act, 1951.[footnoteRef:5] As a consequence, Members of Parliament and Members of State Legislatures no longer enjoyed the privilege for long conferred on them that is to say MPs and MLAs when they stood convicted of offences involving imprisonment for terms of 2 years and above they were now placed (by the judgment of 10.7.2013) in the same position as all other citizens; each member of Parliament or of a State Legislature on conviction became disqualified to become members and if members vacated their respective seats, even though under section 8(4) of the Representation of People Act (as enacted) there was to be no disqualification or vacating of seats if the concerned MP/MLA had filed an appeal against the conviction/sentence after which he/she could retain his/her seat (and membership of the House) till the disposal of appeals without the requirement of seeking or obtaining a stay of conviction from the Higher Court. Such appeals generally were almost never decided till the next election! [5: 2013 (7) SCC 653. ]

In Chief Election Commission v. Jan Choukidar[footnoteRef:6] the Supreme Court upheld an order of the Patna High Court declaring that a person who was confined in prison had no right to vote by virtue of the provisions contained in Section 62(2) of the RP Act, since he/she was not an elector, and was therefore not qualified to contest elections to either House of Parliament or to the Legislative Assembly of a State. [6: 2013 (7) SCC 507]

The above judgments did not go down at all well with MPs or MLAs there was almost universal antipathy in the corridors of power to the Supreme Court of India soon to be paid-back in spades, as the expression goes!

What follows is of importance and also of great significance. On 23rd August, 2013, the Central Government (the UPA Government) got drafted and introduced in the Rajya Sabha the following series of Bills: Nos.57 (LVII) of 2013, 60(LX) of 2013, 61 (LXI) of 2013 and 62(LXII) of 2013: viz. (a)The Representation of People (Amendment and Validation) Bill.No.57/13 was introduced to invalidate the judgment of the Supreme Court of India dated 10.7.2013 in the Jan Chowkidar case and the validation Act promptly was passed in both Houses of Parliament and when assented to by the President became law.

(b)The Constitutional 120th Amendment Bill No.60 of 2013 was introduced for amending Articles 124 and 217 by substituting a new scheme of appointment severely diluting the role of the Higher Judiciary, in the appointment of Judges. The Bill was passed in the Rajya Sabha with an overwhelming majority of members voting in its favour, but the Bill lapsed because it could not be introduced and passed in the Lok Sabha in view of the dissolution of the Lok Sabha in May 2014.(c)The Judicial Appointments Commission Bill No.61 of 2013 for appointment of Judges in the Higher Judiciary complementary to the 121st Constitution Amendment Bill also introduced by the then UPA Government Bill remained pending in the Rajya Sabha. It was much later withdrawn (after the General Elections of May 2014) by the successor NDA Government in August 2014, since the NDA Government had introduced in the Lok Sabha a Bill of its own (along lines similar to the UPA Government as the Constitution 120th Amendment Bill).

(d)The RPA (Second Amendment and Validation) Bill No. 62 of 2013 proposed to invalidate the judgment dated 10th July, 2013 of the Supreme Court in Lilly Thomas. It attempted to re-introduce Section 8(4) of the RP Act, but this Bill could not be passed for want of time. However, all political parties including the UPA Government then power in 2013 were determined to forthwith restore the immunities and privileges, erstwhile enjoyed by all Parliamentarians and Legislators, in terms of the old Section 8(4), and so an Ordinance (on the same lines as the pending Bill 62 of 2013 was drafted and approved by the Council of Ministers (UPA Government) and forwarded to the President for assent. Before it could be assented to however in a dramatic public posture by the Vice President of the Congress Party (then in power) it was withdrawn a copy of it being torn in full public gaze at a televised press conference!

(e)In August 2014, the NDA Government now in office after the May 2014 elections introduced the Constitution 121st Amendment Bill 97 of 2014 in the Lok Sabha as well as the NJAC Bill 96 of 2014 along the lines of the Bills of the predecessor Government; the two bills were then passed with near unanimity on 13/14 August 2014 in the Lok Sabha the Constitution 120th Amendment as a Constitution Amendment Bill, and the NJAC Bill as an ordinary Bill. The NJAC Bill as passed was not immediately forwarded to the President for assent, but withheld till after the intended ratification of the Constitution 121st amendment Bill 2014. After a majority of (one half of) the State Legislatures ratified the constitutional amendment by resolutions the Constitution Amendment Bill along with the Legislative Bill (NJAC Bill) were presented for assent and were assented to by the President on 31-12-2014. Both measures were thereafter brought into by force by notifications bearing same date viz. 13-4-2015.

PART-IIThe Collegium SystemIt must be noted that after the collegium system was put in place after 9 Judge Bench Decision (1993) the Independence of the Judiciary was cemented and strengthened[footnoteRef:7]. This was the view of one of Indias great Chief Justices. But with regard to transparency, there has been criticism. Taking advantage of this criticism about lack of transparency Political Parties across the political spectrum have attacked the collegium system. [7: In the Consultation Paper on Superior Judiciary 2001 (Venkatachalaiah Commission) it is recorded that the Superior Judiciary had performed exceedingly well over the last 4 decades and has contributed significantly to the advancement of public good and good governance. The view of one of Indias most distinguished Chief Justice. ]

But the new system totally erodes and greatly damages the Independence of the Judiciary: unlike at least two prior proposed Constitutional Amendments: substituting a National Judicial Commission for the system that had prevailed prior to 13th April, 2015. Bill.No.67 of 1990 had proposed a Judicial Commission of 11 members of which 7 were Sitting Judges and the eighth an immediately retired CJI who were to function along with 3 non-Judges viz. Law Minister, Attorney-General and one outstanding legal academic;

Subsequently came the Bill drafted by the Venkatachaliah Commission (to Review the Constitution) in which an NJAC was also recommended. It was to consist of (i) Chief Justice of India; (ii) Two senior-most Judges of the Supreme Court of India; (iii) Union Minister for Law and Justice, (iv) one Eminent Person nominated by the President in consultation with CJI - recommendation was to be treated as integral in view of the need to preserve the Independence of the Judiciary. (quote from the Venkatachaliah Commission Report on the Review of the Constitution).

About the slur of Judges appointing Judges those abroad do not see it that way.

In a recent Article (taken from a paper of Dr. Arghya Sengupta of OXFORD) relied on by the Learned Attorney-General, viz. Structure Matters: The Impact of Court Structure on Indian and US Supreme Court published in volume 61 (2013) American Journal of Comparative Law page 173[footnoteRef:8] it has been recorded: [8: Electronic copy available at: http://ssrn.com/abstract=2061061 page 101 to 138 at page 119 COPY ANNEXED AS EXHIBIT-I.]

Given their virtual self-selection, judges on the Indian Supreme Court are viewed as less politicised than in the United States. The panel structure of the Court also prevents clear ideological blocks from being perceived (even if there are more activist or conservative judges) there is not the sense that all the judges have to assemble together for a decision to be legitimate or fair in the eyes of the public. Quite the opposite, judges are viewed as bringing different skills or backgrounds that should be selectively utilized..........

The large size of the Court and the authority of the Chief Justice to assign judges to panels are frequently defended on the ground that judges have different expertise. It is not possible for a Judge to know everything and so more judges (so stated in Parliament) would ensure the final law for the land is to be laid down by Judges specialized in a particular branch of law. If judges gain legitimacy from expertise in interpreting the law having specialized judges arguably produces stronger, more legitimate judgments. The more judges and panels on the Supreme Court the more expertise it can draw upon. For example, the de facto tax and environment benches of the Indian Supreme Court have judges who have a specialty in these areas.

In an important footnote it is stated (quoting Roscoe Pound, The Courts and the Crown in THE SPIRIT OF THE COMMON LAW (1921) that judicial independence was originally founded in part upon the idea that judges had a certain expertise in understanding the law that the sovereign did not. This is like the origin of judicial review in England. It originated in a celebrated rebuke by Chief Justice Coke in the early 17th century of his King James I which nearly cost Chief Justice Coke his head the story is reported and related by Justice Mathew in a footnote to his judgment in Indira Gandhi vs.l Raj Narain[footnoteRef:9]. [9: 1975 Suppl. SCC 1 at page 133 (footnote 96) in the judgment of Justice Mathew the following interesting passage occurs which reflects the correctness of Dean Roscoe Pound dictum:On Sunday morning, November 10, 1607, there was a remarkable interview in Whitehall between Sir Edward Coke, Chief Justice of the Common Pleas, and James I. We have only Cokes account of the interview and not the Kings but, there is no reason to doubt its essential authenticity. The question between them was whether the King, in his own person might take what causes he pleased from the determination of the judges and determine them himself. This is what Coke says happened: Then the King said that he thought the law was founded upon reason and that he and others had reason as well as the Judges; to which it was answered by me, that true it was that God had endowed His Majesty with excellent science and great endowments of nature, but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience before that a man can attain to the cognizance of it; and that the law was the golden metwand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said: to which I said that Bracton saith, quod Rex non debet esse sub-homine sed sub Deo et lege. The King ought not to be under a man, non debet esse sub-homine, but under God and the law, sed sub Deo et lege, It would be hard to find a single paragraph in which more of the essence of English constitutional law and history could be found. (quote from R.F. V. Heuston: Essays in Constitutional Law, Second Edition, pp. 32-33). ]

Part-IIIManner of consultation under the Collegium System

The disclosure of some files voluntarily and fairly produced by Learned Attorney General was (to me) most revealing from what the Attorney General orally stated (the files could not possibly be disclosed to anyone other than the Judges lest names got revealed along with such disclosures); the files apparently showed confabulations back and forth between judges in the collegium on the one hand which and the executive on the other hand appeared (to me) to show the intense and healthy scrutiny under the collegium system. The demand (and criticism) of those attacking the collegium system that it should be made more transparent may have some merit but the off-side is that (some) Judges and (some) Lawyers would be ruined in their reputation thus leading to a greater lack of confidence in the new appointments system (now introduced by the two measures challenged in this Writ Petition).

The Learned Attorney General stated that there was no secrecy whatever attached to the proceedings of the proposed National Judicial Appointments Commission and it would therefore be open for scrutiny and comment by the public through the RTI. This is a bit alarming and whatever the ultimate decision in the present Writ Petition this must be suitably guarded against because if the confabulations and consultations are open to public scrutiny (and thus ensure transparency) there is bound to be differing views publically expressed as to why X was appointed when Y ought to have been, or why Z was appointed who had a questionable past record: group pressure, political pressure and media pressure would intensify in such situations with possibilities and reasonable probabilities of paidnewssyndrome/lobbying would being enhanced: the new system would then be a case of throwing the baby out with the bath-water!

Part IVPersonal Note

On a Personal Note - Yesterday, my lords, I was much quoted by several of my learned friends (which prompted me to think: God save us from our friends), I now believe that the Attorney General and Solicitor General are my true friends, since they did not rake up my past!!.

But seriously, my lords, I was perhaps rightly reminded of the Chapter in my biography (Before Memory Fades) written some years ago (and my defence is not that my memory has since faded).

But since I have been characterized as a person advancing arguments on behalf of a client organization, arguments in which (it is said) I do not, myself personally believe in, I feel I do owe an explanation - and the explanation is as follows:

I have been, and I continue to be, a supporter of the Judicial-AppointmentCommission-system and so are my clients whom I represent (this is so stated in the Writ Petition at page 26 to 31, and 44 to 45). BUT I am definitely opposed to a pretence of a Judicial Appointments Commission which in reality is not judicial, only partly or quasi judicial. The Judicial Appointments Commission system (so called) as embodied in the 99th Constitutional Amendment, 2014 and along with the NJAC Act, 2014, is opposed because is not in accordance with and does not conform to the Beijing Principles on Independence of the Judiciary (by which we in India are governed). The principles were formulated after long deliberation by Heads of the Judiciary in the LAWASIA region (including Indias Chief Justice) who are all signatories to the Beijing Principle. Principles No. 15 reads as follows: 15. In some societies, the appointment of judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen as a means of ensuring that those chosen judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, it should include representatives of the higher Judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.

Note - NOT OUTSIDERS, not representatives of the EXECUTIVE: because this is not helpful in the interests of maintaining the INDEPENDENCE OF THE JUDICIARY. Text of Beijing Principles are annexed as Exhibit-II.

The then Law Minister had stated in Parliament, when these measures were first introduced, that he had consulted named persons including myself and as to what I said is accurately recorded in the Minutes of the Meeting prepared by the office of the Law Minister. This is what the minutes record:-Constitutional Expert and Senior Advocate, Shri Fali Nariman stated that it is important to remember the independence of the judiciary and the separation of powers. The basic structure doctrine as laid down by the Supreme Court in the Keshavananda Bharti case could not be violated and any proposal for appointment of judges must be in conformity with the basic structure. He felt that the Government should consider following the model of the Appointments Commission as suggested by the Justice Venkatchaliah Commission that gave dominance to the judiciary in the appointment process. He stated that composition of the Commission is the basic issue, and a Commission with non-Judge domination would not be viable in India.

The following is what some others invitees said (as recorded in the Minutes of Meeting prepared by the office of the Law Minister:

-Former Law Minister Shri Shanti Bhushan complimented Minister of law and Justice for initiating this Consultation. He stated that the main litigation is between the public and the Government. The judiciary is required to adjudicate, and therefore Judges must be independent of Government. If Judges feel that they owe their appointment to Government they will feel indebted to Government. Therefore, Governments role should be minimal. The concept of an independent judiciary needed to be upheld and respected. -Justice V.N.Khare, retired Chief Justice of India, voiced the view that there appears to be consensus that the system of appointments should change. However, there is every possibility that the new system would be challenged in court. He felt that the term consultation in Articles 124 and 217 did not mean concurrence, and this needed to be clarified in the Constitution. If this is done, then the very basis of the 1993 and 1998 judgments would be removed. He was of the opinion that whatever character was given to the Commission, there should be dominance of the judiciary, with the Law Minister as a member on it. He also suggested that one member of the Commission could possibly be nominated by the Supreme Court. -Justice A.P.Shah, Chairperson, Law Commission of India, put forth an alternate model/composition of the JAC. In a note that he circulated, he proposed that the JAC should be a seven-member body with the Chief Justice of India as Chairperson, and three Supreme Court judges as members. The Law Minister would be the sole representative of the executive. He also put forward the idea that there should be some representation from civil society on the Commission. He also recommended that the JAC should have a full-time Secretariat headed by a retired High Court judge and a small investigating team to verify the antecedents of the proposed candidates. This would be away with IB investigations. The JAC would interview candidates in-camera; and the entire process would be publicly disclosed with adequate safeguards in place of protect candidates privacy. To ensure transparency the Commission should publish its annual report on appointments made. - Senior academician Prof. Upendra Baxi said that as there is no empirical study on functioning of present system and no how system worked prior to 1993, a scientific study is required before bringing a change in system of appointment of Judges. He highlighted the need for inclusion of minority groups such as women and SC/STs in the judiciary. -Senior advocate and Constitutional expert Shri Anil Diwan stated that the secretariat of the JAC as formulated in the Bill is a mere Government Department. It needs staff, venue and funds. It needs a Registry, like the Supreme Court/High Court, and funds/expenses charged to the Consolidated Fund of India, without governmental budgetary control. The Constitutional Amendment should encompass the composition and the functions of the Commission. He raised the issue whether the present Bill addresses the reasons as to why the Collegium system has not succeeded. The present system of appointment has resulted in gross abuse of power with complete favoritism in the appointment process. He felt that the composition as proposed in the Bill which was introduced in Parliament would have the infirmities as the Collegium. He emphasized the need for transparency while continuing to maintain confidentiality, to drive home the point that increased transparency does not mean a complete erosion of privacy and discretion. He emphasized the need of a good database. On the issue of the process to be followed, he suggested an advertisement process. The data base would help generate a credible list of persons. The criteria for selection should become part of the Bill. There should be provision for inputs from the Bar, public, albeit subject to confidentiality to protect the reputations of persons. He also felt that there should be a pre-dominant judicial edge, though not necessarily by seniority. (Minutes of Meeting prepared by Office of Law Minister are Annexed as Exhibit-III).

With this brief explanation I rest my case un-embarrassed by what was stated yesterday by friends.

*******