Exclusive ; Jethmalani relying on Shreya Singhal submits that NJAC Act is too vague and to be declared invalid; Read his written submissions before Constitution Bench

Well known Jurist and Senior Advocate Ram Jethmalani appearing for Advocate Ashish Dixit, an intervener in the NJAC matter, submitted before the Constitution Bench that a statute even a Constitutional Amendment Statute has to be declared invalid of it’s too vague and makes the task of its application or enforcement impossible or even difficult. Relying on the landmark Judgment of Supreme Court in Shreya Singhal v. Union of India he submitted that the reference to two eminent persons in the National Judicial Appointment Commission Act is provision of this kind and void.Read his written submissions hereSummary Of Submissions By Shri. Ram Jethmalani, Senior AdvocatePROPOSITIONS AND AUTHORITIES-The independence of judiciary is a basic feature of our Republican Constitution within the meaning of Kesavananda Judgment (1973) 4 SCC 225 followed in I.R. Colehlo vs. State of Tamil Nadu (2007) 2 SCC 1.The nine judges bench judgment of this Hon’ble Court reported in (1993) 4 SCC 441 is binding on this Hon’ble Bench.(a) Though the majority judgment was of Justice Verma, a concurring judgment of Justice Pandian is more detailed and more precise and clear. The majority judgment does not differ from it on any issue relevant in these proceedings.(b) I will rely mainly on the concurring judgment of Justice Pandian (See Para 8 at page 505).(c) In Para 9 he made it clear that the matter involved reconsideration of Gupta’s Case (1981) Supp SCC 87.(d) In Para 19-20 relying on the Canadian decision of Dickson C.J he held that interpretations of some statute can change with altered social conditions arising out of decades gone by.“Constitution is not ever locked in a century old casket. It lives and breathes and is capable of growing to keep pace with the growth of the Country and its people’.In Para 21 he referred to the new dynamic judicial activism, a vital change.(e) Pondyals Case (AIR 1993 S.C. 1804) Para 23-A- A great principle of interpretation and Para 24-25 formulate the main issues.III. He notes that even Justice Bhagwati who authored the Guptas final conclusions under challenge was not happy with the conclusion reached by him. His own judgment indicates that Bhagwati was not happy with what he thought was compelled by the words of the Constitution. This Para itself indicates what kind of National Judicial Appointment is required, “ It must consists of persons who have knowledge of the persons to be appointed and the qualities required for appointment and this last requirement is absolutely essential”. This is insurance of independent judges only being appointed.The nine judges’ judgment has overruled the Gupta. The case was decided the way it was because the word ‘consultation’ was not capable of bearing the alternative meaning of ‘concurrence’. The Court did not consider that independence of judiciary means freedom from executive influence and Kesavananda’s Case had committed the judiciary to regard executive intervention in appointment a violation of a basic feature of the Constitution. One can save the provisions from invalidity by reading it down. What was required in this case was a very mild reading down consultees’ advice given during consultation is binding.The consultation is compulsory. The President gets the advice from judiciary.The executive advice is by convention.Constitution does not in express terms provide for it. The executive cannot give advice much less binding advice which involves breach of the Constitutions basic structure. See the view of the Australian Chief Justice accepted in this judgment. (Para 25 at Page 213 continued).Executive can give advice to president while exercising powers in relation to maters within Union List or concurrent list. Parliament has no power to legislate on the matter of appointment of judges in the Supreme Court or the High Courts. Article 73 of the Constitution. Justice Kuldip Singh concurring judgement (Para 408 at Page 675). This is the argument made but the majority did not decide it. There is no answer to the contention.VII. Any constitutional amendment which diminishes or dilutes the primacy of the Chief Justice recognized by 1993 and 1998 judgment of this Court is void as repugnant to the basic feature of the Constitution and also inconsistent with the nine judge bench.The Constitutional position today is that the executive will be entitled to and bound to consult the Chief Justice and the CJI’s view is binding on the President. This right has been taken away from him and he is made to share it with 5 others.Any two joining together can render the proceedings nugatory and no appointment desired by the judiciary can take place. His power to appoint and fill up all vacancies can be just extinguished.The executive which had only the right and duty to participate in the consultation process has now a Constitutional power to vote and the law minister with his asset of vast patronage can get one vote on his side and render the judiciary impotent; with two more on...

Exclusive ; Jethmalani relying on Shreya Singhal submits that NJAC Act is too vague and to be declared invalid; Read his written submissions before Constitution Bench

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