Aiba Reference Collegium System

ALL INDIA BAR ASSOCIATION
108 & 130, Setalvad Lawyers Chambers Block, Supreme Court, New Delhi-110001
Tel +91-11-23074406, Mob: +91-9868510674
464, Chambers, Delhi High Court, New Delhi-110003; Mobiles: 9958177904, 9910063501
*Gaura Harish Kunj, DS-423/424, New Rajinder Nagar, New Delhi-60; Tel: +91-11-28743284, 28743285
Email: international.jurists6@gmail.com; contact@allindiabar.org, allindiabarassociation@gmail.com
Web: www.allindiabar.org
CHAIRMAN:
Dr. Adish C. Aggarwala, Sr. Adv.
President, International Council of Jurists
President, International Commission of Writers
Convener, Indian Council of Jurists
Ex. Senior Additional Advocate General of Haryana
Ex. Addl. Advocate General of Punjab, T.N., U.P.
Ex. Vice-Chairman, Bar Council of India
Ex. Vice-President, Supreme Court Bar Association
Ex. Chairman, Bar Council of Delhi
VICE-CHAIRMEN:
8.5.2015
His Excellency Honble President of India
Rashtrapathi Bhavan,
New Delhi
Mr. S. Prabhakaran
Co-Chairman, Bar Council of India
President, Tamil Nadu Advocates Association
Ex. President, Madras High Court Adv. Association
Organizing Secretary, Indian Council of Jurists
Your Excellency,
Mr. Ashok Mehta, Sr. Advocate

Chairman, Bar Council of Rajasthan
Ex. President, Jaipur Bar Association
Mr. Yatin N.Oza, Ex. MLA. Sr. Advocate

Ex. President, Gujarat High Court Advocates Assn
Secretary, India Legal Information Institute
AIBA
seeks
Presidential
Reference
controversial collegium and NJAC issues
on
Mr. B.D. Hiremath

President, High Court Bar Association, Dharwad
Ex. Vice- Chairman, Bar Council of Karnataka
Ex. Member, Bar Council of India
Mr. Amarjit S. Chandhiok, Sr. Adv.

Ex. Additional Solicitor General of India
Ex.President, Delhi High Court Bar Association
Mr. Arun Kumar Tripathi

Member & Ex. Chairman, Bar Council of U.P.
Mr. Anandkumar Appu Magadum

Member & Ex. Chairman, Bar Council of Karnataka
Mr. Baleshwar Prasad Sharma
On behalf of the All India Bar Association, I seek the immediate

intervention of Your Excellency in the ongoing controversy
relating to the validity of the National Judicial Appointments
Commission to replace the collegium system of judicial
appointments.
Member & Ex. Chairman, Bar Council of Bihar
GENERAL SECRETARIES:
Mr. Partap Singh
Ex. Chairman, Bar Council of Punjab & Haryana
Member, Bar Council of Punjab & Haryana
Mr. B. Purushothama Reddy

President, Federation of Bar Associations of States
of Andhra Pradesh & Telangana
Ex. President, A. P. High Court Bar Association
Mr. Shailendra Dubey

Member, Bar Council of India
Member & Ex.Chairman, Bar Council of Chattisgarh
Ex. Hony Secretay,Chattisgarh High Court Bar Assn.
Mr. Radhe Lal Gupta

Ex. Assistant Solicitor General of India
Member & Ex. Treasurer, Bar Council of M.P.
Mr. Joydeep Mukherjee

General Secretary, All India Legal Aid Forum
HONY SECRETARIES:
Ms. Razia Beg
Member & Ex. Chairman, Bar Council of Uttrakhand
Mr. Prabha Shankar Misra

Ex. Hony Secretary, High Court Bar Association,
Allahabad
Mr. Ashwini Kumar Dubey

Chairman, Jagriti D. Foundation
TREASURER:
Mr. Ajay Kumar Gupta
Hony Secretary, India Legal Information Institute
Ex. Jt. Secretary, Delhi High Court Bar Association
FOREIGN AFFAIRS DIVISION:

Mr. Abhinav Singh
Convener, Foreign Affairs Division, AIBA
Hony Secretary, India Legal Informational Institute
Your Excellency may be aware that the Supreme Court of India

is hearing for the last two weeks a batch of writ petitions
challenging the NJAC and the Constitution amendment laws.
During the course of hearing it has now emerged that Mr.
Mukul Rohtagi, Attorney General of India, is keen on the apex
court reconsidering the 1993 and 1998 judgments pronounced
by the apex court which paved the way for collegium system of
appointments. The AG asserted before this five-judge
Constitution bench that these decisions had stifled the
democratic process of effective consultation with the Executive
enunciated in Article 124 of the Constitution. The AG
requested the bench to refer the matter to a larger bench of 11
judges so that the issue could be settled once and for all. It is
the contention of the government that the apex court had
rendered these judgments with patent disregard of legislative
history and intent in arriving at the conclusion that consultation
means concurrence.
He said the two decisions gave absolute power to the
collegium headed by the CJI and held the field for 22 years.
The collegium system had disturbed the checks and balances
and separation of powers provided in the Constitution. The AG
said the interpretation of Article 124 of the Constitution giving
way for collegium system does violence to Article 124 and

Tel +91-11-23074406, Mob: +91-9868510674
CHAIRMAN:
VICE-CHAIRMEN:
Mr. S. Prabhakaran


Mr. B.D. Hiremath

renders otiose and tantamounts to deletion of parts of the

provision.
The AG said the arrogation of power to the collegium which
comprises of the CJI and four senior most judges of the
Supreme Court dilutes the effect of individual consultation of
the President of India with such other judges as he may deem
necessary. It also had the effect of complete insulation of the
judicial system from executive control which was not envisaged
in the Constitution. The President was required to weigh all the
views while arriving at a decision but the second judges case
effectively obliterates the importance given to the President
and the plurality of the views.




Mr. Partap Singh


Mr. Radhe Lal Gupta


HONY SECRETARIES:
Ms. Razia Beg

Allahabad

TREASURER:

Mr. Abhinav Singh
Even as the AG was criticizing the two earlier judgments, the

court asked the AG as to why it had not sought Presidential
Reference under Article 145 (3) of the Constitution of India, as
it was done during 1998. The court pointed out that without
seeking review or a Reference it would not be proper for the
apex court to reconsider its own decisions. It is in this context
the AIBA seek your indulgence to step in immediately to save
the judicial system in the country.
Your Excellency may be aware that with the notification of the
NJAC the collegiums system is no more in existence. The
government has already stopped consideration of over 125
names recommended by the various High Courts as
appointment of Judges. Further some of the Additional Judges
who were appointed for a period of two years are to be
confirmed as permanent judges shortly. The present judicial
stalemate does not augur well for the country.
Though the Supreme Court is to pronounce its verdict after
conclusion of arguments in these proceedings, the AIBA
strongly feels that it would be desirable if the President of India
seeks Advisory opinion through a Reference so that the apex
court would be bound to refer the issue to a larger Bench.
With over 36 years of standing in the bar and author of
commentary on Constitution of India, I can safely say with
confidence that the apex court in 1993 had indulged in judicial

Tel +91-11-23074406, Mob: +91-9868510674
CHAIRMAN:
VICE-CHAIRMEN:
overreach when it held that President of India was bound by

the advice of the Chief Justice of India and other members of
the collegium in matters of judicial appointments if the
collegium were to reiterate its position whenever there was any
objection from the Executive through the President.
Mr. S. Prabhakaran


Mr. B.D. Hiremath





Mr. Partap Singh
Experience in countries like United Kingdom, Australia,

Canada and New Zealand had shown Judicial Appointments
Commission for judges appointments is working very well.
Under the original Constitution of India, the President was
empowered to consult judges of the Supreme Court to arrive at
a decision. This has been given a go-bye by the 1993
judgment, violating the doctrine of separation of powers among
the three organs, viz executive, judiciary and legislature. The
AIBA strongly feels that vesting absolute power on the CJI and
the collegium in the matter of appointments for all times to
come needs reconsideration to restore the equilibrium in the
Constitution. This can be done only by Your Excellency's
intervention.


Mr. Radhe Lal Gupta


HONY SECRETARIES:
Ms. Razia Beg

Allahabad

TREASURER:

Mr. Abhinav Singh
The Presidential Reference is required to answer several

issues including the following, viz whether the decision of the
1993 judgment declaring consultation occuring in Article 124
of the Constitution as concurrence was the correct
interpretation; whether in doing so the Supreme Court had
traversed beyond the legislative intent of the framers of the
Constitution; whether or not such an interpretation would
amount to judicial legislation and re-writing the Constitution;
whether the flawed collegium system with its opaque and nontransparent manner of appointments should continue for ever;
whether the National Judicial Appointments Commission has in
any manner violated the basic structure of the Constitution;
whether vesting the power of appointments to the Commission
will affect the independence of the judiciary; whether merely
because two eminent persons are to be nominated, the NJAC
dilutes judicial independence and whether giving equal
importance to the judiciary (CJI and two senior most judges),
the Law Minister and two eminent persons will disturb the
checks and balances in the Constitution.

Tel +91-11-23074406, Mob: +91-9868510674
CHAIRMAN:
VICE-CHAIRMEN:
Your Excellency, the questions are only indicative and not

exhaustive and you may seek the advice of the Attorney
General and other legal luminaries in framing the questions. I
can safely say that your intervention through a Reference will
go a long way in saving the nation.
Mr. S. Prabhakaran
With regards,
Yours sincerely,


Mr. B.D. Hiremath


(Dr. Adish C Aggarwala)

Senior Advocate
Chairman, All India Bar Association
Mobile :+(91) 9958177904, 9868510674



Mr. Partap Singh

Copy to :
Honble Mr. Narendra Modi, Prime Minister of India
Honble Mr. D.V. Sadananda Gowda, Law & Justice Minister of
India
Learned Mr. Mukul Rohtagi, Attorney General of India
With a request to do the needful at the earliest.

Mr. Radhe Lal Gupta


HONY SECRETARIES:
Ms. Razia Beg

Allahabad

TREASURER:

Mr. Abhinav Singh
(Dr. Adish C Aggarwala)

Aiba Reference Collegium System

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ALL INDIA BAR ASSOCIATION

Mr. Ashok Mehta, Sr. Advocate

Mr. Yatin N.Oza, Ex. MLA. Sr. Advocate

Mr. B.D. Hiremath

Mr. Amarjit S. Chandhiok, Sr. Adv.

Mr. Arun Kumar Tripathi

Mr. Anandkumar Appu Magadum

Mr. Baleshwar Prasad Sharma

On behalf of the All India Bar Association, I seek the immediate

Member & Ex. Chairman, Bar Council of Bihar

Mr. B. Purushothama Reddy

Mr. Shailendra Dubey

Mr. Radhe Lal Gupta

Mr. Joydeep Mukherjee

Mr. Prabha Shankar Misra

Mr. Ashwini Kumar Dubey

FOREIGN AFFAIRS DIVISION:

Your Excellency may be aware that the Supreme Court of India

ALL INDIA BAR ASSOCIATION

Mr. Ashok Mehta, Sr. Advocate

Mr. Yatin N.Oza, Ex. MLA. Sr. Advocate

Mr. B.D. Hiremath

Mr. Amarjit S. Chandhiok, Sr. Adv.

renders otiose and tantamounts to deletion of parts of the

Ex. Additional Solicitor General of India

Mr. Arun Kumar Tripathi

Mr. Anandkumar Appu Magadum

Mr. Baleshwar Prasad Sharma

Mr. B. Purushothama Reddy

Mr. Shailendra Dubey

Mr. Radhe Lal Gupta

Mr. Joydeep Mukherjee

Mr. Prabha Shankar Misra

Mr. Ashwini Kumar Dubey

FOREIGN AFFAIRS DIVISION:

Even as the AG was criticizing the two earlier judgments, the

ALL INDIA BAR ASSOCIATION

overreach when it held that President of India was bound by

Mr. Ashok Mehta, Sr. Advocate

Mr. Yatin N.Oza, Ex. MLA. Sr. Advocate

Mr. B.D. Hiremath

Mr. Amarjit S. Chandhiok, Sr. Adv.

Mr. Arun Kumar Tripathi

Mr. Anandkumar Appu Magadum

Mr. Baleshwar Prasad Sharma

Experience in countries like United Kingdom, Australia,

Mr. B. Purushothama Reddy

Mr. Shailendra Dubey

Mr. Radhe Lal Gupta

Mr. Joydeep Mukherjee

Mr. Prabha Shankar Misra

Mr. Ashwini Kumar Dubey

FOREIGN AFFAIRS DIVISION:

The Presidential Reference is required to answer several

ALL INDIA BAR ASSOCIATION

Your Excellency, the questions are only indicative and not

Mr. Ashok Mehta, Sr. Advocate

Chairman, Bar Council of Rajasthan

Mr. Yatin N.Oza, Ex. MLA. Sr. Advocate

Mr. B.D. Hiremath

Mr. Amarjit S. Chandhiok, Sr. Adv.

(Dr. Adish C Aggarwala)

Mr. Arun Kumar Tripathi

Mr. Anandkumar Appu Magadum