18, Jun 2015 | Samanwaya Rautray

New Delhi:

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Supreme Court Bar Association president Dushyant Dave on Wednesday questioned the top court’s decision to grant bail to all accused in the Sohrabuddin fake encounter case, and also former Gujarat minister Maya Kodnani, who was convicted for the murder of 70 people during the 2002 Gujarat riots. A bench comprising Justices JS Khehar, Jasti Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel is hearing petitions challenging the constitutional validity of the National Judicial Commission Act (NJAC), which they claim will erode judicial independence.

Dave was responding to Justice Kurian Joseph’s contention that if the collegium system had not worked, a part of the blame lay with the government for not doing its due diligence on a candidate’s integrity. Continuing his arguments in support of the NJAC, Dave rejected Justice Kurian’s suggestion saying that every government would want pliable judges. “The executive wants a weak, pliable judiciary. Lack of integrity suits the executive, which knows how to manipulate them,“ he said. Dave then turned to how the collegium had failed in choosing the best in “ethical behavior and personal conduct“.

Throwing his weight behind the NJAC, he said that the system of selection did not matter as long as the person had integrity and was not amenable after he was made a judge.He, however, faulted the top court for failing to address the concerns of civil society and that of ordinary citizens.

“Every accused in the Sohrabuddin case gets bail, but poor Teesta (activist Teesta Se talvad) has to run from pillar to post. In al the Gujarat riot cases, those accused of mur der get acquitted. The state does not appeal This court gave bail to Maya Kodnani who was convicted for the murder of 70 people.“

Dave also accused the court of failing to come to the rescue of activists such as Setalvad and Prashant Bhushan. “Democracy needs such activists. The court needs to protect them.“ He credited Bhushan for drawing attention to the 2G and coal scams, which had garnered over . 2 lakh crore for the exchequer. Bhushan does ` not demand z-plus security or 68 security personnel like Baba Ramdev, he said.

All this would have to be kept in mind during selection of a judge, he said. “Once when a man gets power, will he be amenable to power or will he remember his oath?“ Justice Joseph sought to know if the NJAC would guarantee this. Dave said there can be no guarantees, but at least there will be consultations and transparency, which were an improvement over the collegium system.“Any inroad into judicial independence has to be serious, not imaginary,“ he said.

Justice Khehar did not take kindly to his submissions, dubbing it a lecture. Dave then clarified that a “majority of the judges in the top court were outstanding“, except a few.

Justice Khehar also scoffed at civil society.“We have seen civil society. They lead nowhere. We see no revolution happening in this country,“ he said, suggesting that the only two options were the NJAC or a return to the collegium system of appointing judges.

In his counter, lead counsel for those arguing against the NJAC, constitutional expert Fali S Nariman suggested that the political class was enraged by the court order in a recent case to disallow convicted lawmakers from contesting in the elections and had joined hands to cut the judiciary down to size. He suggested that the court do away with a judge’s immunity from prosecution after he ceases office, whether it struck down the NJAC or retained the collegium system of appointing superior court judges, citing the court’s refusal to deal one recent case of misconduct by a retired judge.

***This Article was originally published by the Times of India. It can be found here.