The Judiciary Debate Sai Deepak Swamy Bhushan Sibal Hegde

TITLE: The Judiciary Debate!Ft. Mr. Sai Deepak,Dr. Swamy,Mr. Bhushan,Mr.Sibal,Mr.Hegde,Mr.Gaggar &Mr. Gopal CHANNEL: The Delhi Union DATE: 2026-04-09 ---TRANSCRIPT--- A very good evening to everyone present. I’m Shivam and I have the distinct honor and privilege of serving the Delhi Union alongside a young team of students who share the abiding conviction that healthy balanced public discourse is not merely desirable but essential to the health of our democracy. The Delhi Union is an entirely non-political, non-sectarian, and non-profit organization. On my behalf and on the behalf of everyone in my team, it is my pleasure to welcome you all to our second debate. We envision the Delhi Union as a forum where diverse and even sharply opposing opinions of matter of national interest can be argued with rigor, decency, and honor and differences be treated with mutual respect. The motion today is on a topic which is at the very heart of India’s constitutional architecture. This house believes that judicial appointments should have legislative interference. I repeat, this house believes that judicial appointments should have legislative interference. It is a question that goes beyond the separation of powers and to the very soul of the collegium system, to the unresolved tension between democratic accountability and judicial independence. There are few questions that are more urgent or contested in Indian public policy today. Arguing for the motion, we are joined first by the esteemed Dr. Subramanian Swamy.

[applause] Dr. Subramanian Swamy is a former Union Cabinet Minister for Law and Justice and for Corporate Affairs, a renowned economist, a statistician, the list goes on and on, but he’s also one of the most distinctive legal minds in Indian public life. He has filed cases of historic consequence and has never shied away from positions that cut against the grain of establishment consensus, no matter what they are. He’s also joined joined by Mr. G. Shankaranarayan. He’s a senior advocate [applause] and a formidable voice for the independence of the bar and a lawyer of immense learning and courage. Along them stands retired Justice and now senior advocate Justice Siddharth Mr. Retired whose decades on the bench, including as Chief Justice of Manipur High Court, give him an intimate understanding of how judicial appointments work from the inside. And completing the proposition is a man who needs no introduction, Mr. Sanjay Hegde, senior advocate, senior advocate of the Supreme Court whose eloquence in court is matched only by his clarity as an uncanny commentator on constitutional matters. I look forward to his tweets very often. Arguing against the motion, we are honored to have Mr. J. Sai Deepak, senior Okay. He’s one of the most formidable opponents one can have in a debate. He is joined by Mr. Prashant Bhushan, one of the foremost [applause] and tireless public interest advocates who is who is one of the prominent figures of the India Against Corruption Movement and is a founding member of the Swaraj Abhiyan. Standing with them is Mr. Vaibhav Gaggar, senior advocate, [applause] whose sharp advocacy has made him one of the most formidable voices at the Supreme Court. And completing the side, last but not the least, is Mr. Akhil Sibal, senior advocate, [applause] who brings both intellectual precision and a distinguished lineage to the question of how India’s judiciary must be protected and nourished. Last time when we debated on foreign policy, we had the privilege of hosting and listening to perhaps the most senior and distinguished cabinet ministers of experience of decades, formidable foreign minister Mr. Salman Khurshid and a formidable foreign secretary along with Dr. Karan Singh, Mr. Rajiv Shukla, Mr. Gulshan Das and many others. This time we have an illustrious former law minister and seven senior advocates and retired justices, each present to offer their learned thoughts about the system of appointment of judges in India. I have no doubt that we are in for an evening of most extraordinary legal delight and analysis. We are honored to have everyone present here today. We had an alarming overbooking in the last week with about 3,000 people registering interest to watch this debate physically. I’ve had to write many regret emails and I’m sorry if I wrote them to some of you saying that you can try your luck, but my apologies. Our venue capacity is very short, so I’m sorry for those who are standing as well. We are young and inexperienced and with folded hands, we beseech your indulgence and any feedback, shortcomings, and suggestions, as always, are very welcome. I thank each of our distinguished speakers for gracing us with their time and wisdom and I thank each one of you for being here virtually or physically. I hope you enjoy the debate. Thank you very much. [applause] Good evening, everyone. My name is Aditya Karnik and it is my privilege to serve as the Vice President of the Delhi Union. Today’s format has been designed to be highly engaging and highly interactive. First, we’ll have our six speakers present their arguments in a head-to-head format. Each speaker will be given 6 minutes and 30 seconds to present their arguments. During this time, points of information or POIs will be permitted from the other person in the head-up. A POI is a short interjection from the opposing speaker used to ask a question or challenge a point being made. One may indicate a POI by raising the hand, but it’s up to the speaker holding the floor to decide when to accept that POI. We request that all POIs be brief, relevant, and respectful. After the individual speeches have ended, we’ll have a short break followed by a 20-minute panel discussion. This will include questions from the proposition to the opposition as well as questions from you, the audience. At the end and at the beginning, we are taking votes and we will see the difference and that will decide how the motion is won. All speakers are expected to adhere strictly to their time limits. Time signals will be given and we request participants to conclude promptly. Personal remarks and interruptions outside of POIs will not be permitted as we aim to maintain a space of respectful and constructive dialogue. I would just like to remind the opposition that you are allowed to interject the proposition speaker’s first speech only once and we would also request the opposition to ask one question based on the first proposition speaker’s speech. I now call upon Dr. Subramanian Swamy to begin the debate. Thank you. [applause] I thank you very much. It was not pointed out that I’m the only non-lawyer here. Which means I can Yeah, and I’m a politician to boot, which means I can say anything I want. Whether you like it or not. Justice must not only be done, but it also must be seen to be done, well known. And what the main issue here is of course, the it is stated in the brochure that this house believes that India’s judicial appointments need legislative interference. Now, the word interference is a difficult one, but I certainly think that legislative in all countries of the world that I have studied, not many, but I have studied many, and they do not have a situation like ours. The There is an interaction between the bureaucracy, the Parliament, and and the law. And in India, it’s not so. The lawyers and the Supreme Court, for example, is totally on its own. It’s It can Parliament and the and the bureaucracy has no real no strength in speaking to them or about them. The Constitution recognizes and and embodies a broader version of checks and balances. That is there, of course, is well known. A limited legislative involvement, therefore, is not interference, but legitimate way of to regulate the procedure and reinforce public trust and accountability. Under Section 124 bracket three bracket C, a necessary qualification for becoming a judge in the Supreme Court is that the person must be an eminent jurist in the opinion of the President. The emphasis, therefore, has always been on involvement of the legislature and executive in the judicial world. Parliament already plays a crucial role in the maintaining in maintaining judicial accountability under Article 124 bracket two of the Constitution, judges can be removed through impeachment. If the legislature cannot remove the judges, it is only logical that it should be a measured role in appointing them as well. Comparative constitutional practice supports the balance. No other major democratic country in the world follows the system under judges appointments appointing judges, which is India. India is appointing judges are appointing judges. That is not there in the world. And without any interference from elected officials who represent the will of the people. In other countries, the the for instance, the United States, uh the Senate will summon them, examine them, and so on so forth. None of that happens in here at all. Judicial independence is vital, but independence does not mean isolation. A calibrated legislative role brings transparency, accountability, and democratic confidence to judicial appointments. In other words, I think what we are saying is that the present the Indian judiciary at the specially at the top level, which is the most important, is totally a law into onto itself. And there is hardly any interaction that takes place between either the bureaucracy or the parliament. Uh all these six years six times I was in parliament, I never saw any judge being summoned or asked for to explain or any other any such thing. It’s always a a feeling of awe about the judiciary. So, what my argument is that we should follow somewhat if if it’s uh if it’s not offensive to some people, the American system of having judges who are selected to go through the committee of the of the what is the equivalent what we call as parliament, and they call it this the state. So, hence that recognition, if that takes place, in my opinion, the much of the problems today of privatize of favoritism and things like that which are been coming regularly nowadays, that will completely uh go away if it’s if a person is support is chosen as a uh as a lawyer or as a as a ruler in the in the place, they they they have to be summoned before the parliament, and they should be questioned, and they should be answered. There’s no no one no no question of anybody being trans to to be heard or anything. Otherwise, it’s just basically a way the the country will be able to see it. This house therefore must believe that Indian India’s judicial appointments need legislative interference. And the interference that we need has already been mentioned by me in in in two or three ways. There are many other ways altogether. I think this is the only way by which we can improve our legal system. Otherwise, the legal system will become a law into its own self in the way that common people will find it very difficult. Thank you very much. [applause] Uh now we would like to call upon Mr. J Sai Deepak to talk against uh our motion. Thank you. I’m grateful to the organizers for having made the impossible possible through the composition of the panels. People who never thought that they would actually share space with you finally manage to share space with and also we have this occasion to speak on the same subject, hopefully in the same voice. [applause] As I understand, the topic says that the house believes that judicial appointments must have legislative interference. The good part about the framing of the proposition is that it does not speak for or against the the institution of the collegium itself. Which means, as I understand it, the way I have carved out the proposition for myself, is that I am not here to defend the institution of collegium. Rather, I’m here to define what is legislative interference and push back against it. That’s how I see it. Because the question was not whether there’s a choice between a collegium and legislative process. The question is whether there should be legislative interference in the appointment of in judicial appointments. That’s how I see the question. So, going by that, let me start with creating some kind of a sliding scale here for people to understand what are the different options available. First is the provision itself which speaks of the appointment by the president in consultation with the Chief Justice of India. Now, that has been the subject of at least three landmark judgments and subsequently 2016. You have one system which effectively creates a bubble of sorts, which is the collegium system, where judges decide for themselves on the basis of a consultative process which is internal in nature, to understand how the appointments will come about, of course with some kind of inputs which may be sensitive inputs with respect to security considerations that may be received from the executive. Then there is the other end of the spectrum where the appointments are affected either by the executive or the legislature. Here the question was not about executive interference. The question was about legislative interference. And therefore, we are not on the question of whether political parties or the government of the day shall have the right to appoint or make judicial appointments. It’s a legislative interference. Now Now that we have struck a distinction between the executive and legislature, the next question would be what is interference here? My sense is interference would be not the right to vote, but the right to veto. If the legislature has the final word on judicial appointments, then that becomes interference in my submission, which is to say, what would that bright red line be which, if crossed, would translate or transgress into interference? So, you have consultation. You have concurrence. Where do you think interference falls within which basket? I would say concurrence. Which is, if you can’t take a decision with respect to a legis a judicial appointment without the concurrence of the legislature, that would, in my view, become interference. Now, this is a matter of semantics. Let’s go a step behind, which is the meta question, which is what is it that you’re trying to protect? Are judicial appointments the only sui generis form of appointments which are envisaged within the constitution? Are there no comparable positions within the constitution itself? For for instance, the Election Commission. The Chief Election Commissioner. The Chief Election Commissioner, as T.N. Seshan rightly pointed out, the legendary Alsatian pointed out once, and he himself called himself that, and therefore no offense is meant here, which is that he was an employee of India, but not the government of India. And therefore, he struck a very clear distinction between the state and the entity, the body politic. I would submit that whether it is the Chief Election Commissioner or judicial appointments, in particular to the higher judiciary, would therefore fall in largely similar baskets, if not identical. Therefore, if you wish to understand what should be the position with respect to the appointment of judges to the higher judiciary, you cannot do so without understanding what is the Supreme Court’s latest take with respect to the appointment of the Election Commissioner, wherein some kind of a broader process has been conceived of. I would be in support of a position which preserves judicial independence with respect to the final say, subject to inputs being taken from both sides of the aisle, the treasury as as the opposition. That’s how I would go about it. One of the reasons that I would believe that this is the best way to preserve judicial independence is if you’ve ever been a litigant or a litigator, the behemoth in the room, if there happens to be an opposite party, and if it happens to be the state, is always the state. The state by if you look at the statistics, the state is actually the most litigious entity in the country. Going by any number of studies, including the national litigation policy. And when the bargaining power between two parties is practically nonexistent, I would expect that you offset that difference in bargaining power by ensuring maximum possible neutrality of the person who operates or who sits in that particular position. There are two ways that you can look at this particular issue, and I I hope that the audience considers what I’m trying to say. You can either look at this particular issue through your respective political lenses in terms of who’s in power and who the bench is against, or you can put yourself in the shoes of a litigant or a litigator and ask yourself, are you not better off having a neutral person, regardless of who is in power, as opposed to loading the dice depending on the dispensation of the day, or the ideology of the day, or the favorable winds of the day? That’s the larger question. And if you look at constant assembly debates, particularly debates which dealt with the draft article 103, which was the predecessor article to 124. Discussions revolved around preserving the independence of the judiciary to the maximum possible extent. And I’m going to say something which kind which could sound sound classist, elitist, so on and so forth, but nevertheless I think at least somewhere we must have the ability to speak the truth and a spade must be called a spade. You are not in a position to compare yourself with an America, New Zealand, Australia, or any of these countries, not yet. I’m sorry to say that. I don’t think you’re in a position to actually say that where democracy has been fully democratized. Where the power of adult suffrage, universal suffrage, or franchise is capable of being bought for a biryani packet or a bottle of alcohol. And which is still largely the truth regardless of which part of the country you go to, this is not limited to any particular state or region. I believe that this is a fairly pan-India phenomenon. There I think is unity in diversity. I believe that there must be one check in that place and that hope has been the judiciary traditionally. And if you look at the track record of the judiciary in this country, every time the executive has failed us, people have reposed faith in the institution of judiciary. Kindly strike a distinction between two different issues. One is judicial accountability and judicial appointment. We are on the question of judicial appointment. It is possible to ensure accountability without interfering with the process of appointment. Which means perhaps you could have greater standards of disclosure with respect to assets, greater standards with respect to conflict of interest. You could have greater standards with respect to how a person can be removed from the office. But don’t conflate that issue with the question of judicial appointment. If you do so, in my humble submission, you will walk into a trap and you’ll forget what the issue is about. Kindly constantly focus on the issue. The three central words would be judicial appointment and legislative interference, four words. So don’t conflate the legislature with the executive. Don’t conflate appointments with accountability. Thank you. Thank you so much, Mr. Deepak. I will not be allowing questions from the audience. You’ll get to do that later. We would like to call Mr. Justice Siddharth Mridul to the podium. Good evening. So evidently I’ve come in come in as the pinch hitter. Because I was supposed to follow my friend Gopal Sankaranarayanan. Never mind. So let me let me begin on a more sedate note after the excitement generated by my friend J. Sai Deepak. And I completely disagree with me with him when he says that judicial appointment and judicial accountability can be put into two separate buckets, they cannot. We are talking about the same animal. I’m sorry to use that expression, but we are talking about the same animal. Now let me the Constitution of India is the supreme law. It is the fountainhead. So let me start there. That’s a very good place to begin. Article 124 of the Constitution of India, and I’d like to read it out for all of those who are here because that makes that will give you the perspective in which uh I support the proposition. The article reads thus. Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation Keep that word in mind. Consultation with such of the judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 now. And in the in the case of a Chief Justice, the other judges have to be consulted. Now the expression is consulted. I think you should read the plain dictionary meaning of the expression consulted and I will come directly to that. Uh Consultation. What is consultation and what is concurrence? Consultation means deliberation of persons on some subject a conference between the counsel engaged in a case, for example to discuss its questions or arrange the method of conducting it. In French law, the opinion of counsel appoint a point of law submitted to them. So this is merely an opinion, a consultation. It is vastly different from concurrence. Which is what J. Sai Deepak was emphasizing. Concurrence has been has been introduced by judicial interpretation. If you go back to the first judges case, in fact I’ll go back even further. Let’s go back to the Constituent Assembly debates. And I and I differ once again with J. Sai Deepak because Dr. Bhimrao Ambedkar, the architect of the Constitution, very clearly said this when it was suggested that the Chief Justice of India must appoint judges. This is what he said. With regard to the question of concurrence of the Chief Justice it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I feel I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings all the sentiments and all the prejudices which we as common people have. And I think to allow the Chief Justice practically a veto on the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest. I think it can’t be clearer than that that the Constituent Assembly after applying itself to the question to this very issue enacted Article 124 in the manner which it did which warranted the President of India on the aid and advice of the Council of Ministers to consult the Chief Justice of India when it came to the appointment of judges. There was no question of concurrence. In fact, that is precisely what the Supreme Court Constitution bench decided in the first judges transfer case. In our case when Dr. Ambedkar had made the speech, we didn’t have the basic structure doctrine in place. The basic structure doctrine never came about even in the Constitution. It was a judicial interpretation. And first judges case onwards, all stemmed from there. So is it wrong for the judiciary? Is it overstepping its mandate by interpreting what the basic structure is? It’s a wonderful question and I’ll come to it directly. Is the system of checks and balances a part of the basic structure of the Constitution? Isn’t it? So when the plain words of the Constitution ask for concurrence for consultation can be treated as concurrence, first of all. Second of all that the system of checks and balances is is two-way traffic. On the one hand, you have judicial review of all legislative enactments. That is a check on the power of the legislature. Similarly, you have a check by the legislature on the part of the Chief Justice of India to appoint judges. They cannot do it without their inputs. It’s a blend of both executive, legislative, and judicial. Which is what the National Judicial Appointments Commission was all about. Now let me talk about the composition of that commission. All three judges of the Supreme Court including the Chief Justice of India and J. Sai Deepak alluded to it, so therefore I must refer to the NJAC uh because he referred to the composition. Then it then it included the Prime Minister of India, a very high office. It included the leader of the opposition and the Law Minister. So it took into consideration the views of not just the judiciary, but also the executive and the opposition. Who were also speaking for the legislature. So therefore I believe that to give an interpretation, and therefore I will deal with why the Supreme Court interpreted Article 124 in the manner in which they did. How did they convert consultation into concurrence? Right? Now let’s go to that argument directly because I will not I mean I’m I could go on for a while, but I have time constraints. I’ll come straight to it. The finding of the Honorable Supreme Court is that the appointing authority, which is the President of India is not in a position to appoint judges because he has no familiarity with them. In my respectful view, it is familiarity that we must do without. It is only when you are familiar with the individuals who you seek to appoint that you have difficulty with uh with bhai bhatija vad as it is called. Right? And I must also distinguish between uh judicial excluding I mean judicial independence, right? And judicial supremacy. The distinction is simple. The distinction is that you are trying to make sure that the judiciary is kept away, protected from the pressure that may be exercised by either the executive or the legislature. What about insulating other judges from judges? What about which will bring me to the next question, of course, the manner in which the collegium system has functioned. And I think I should come directly uh to the personal experiences of judges who are on the who are still on the bench about what they have said about the collegium. Justice Ruma Pal famously described the collegium as one of the best kept secrets in the country. Right? She said decisions on appointments and transfer were made behind closed doors with no published criteria or reasons. She further said this secrecy undermined public confidence in the judiciary. And she concluded by saying that while independence was preserved, transparency was sacrificed. She said the collegium does not lay down any clear objective standards for selection. She noted that merit was often undefined and appointments could be influenced by personal preferences or informal considerations. Without codified norms, the process risked arbitrariness. She observed that the collegium functioned as a small exclusive group of judges making decisions without wider consultation. I think I’ll end with that. Sure, go ahead. Mr. The question from Mr. Sidharth Okay. Actually, this is the second question I’m fielding. So, are you comfortable with the question? I’m fine. I can You’re not allowed to decline one question, you can decline the second one if you’d like. It’s the first time I’m in the dock, so I don’t mind. So, the question is Right. Uh since you focused on being close to the dictionary meaning as much as possible, Right. haven’t there been instances where statutes using may have become shall and shall have become may? Absolutely. In which case, why do you insist that consultation must just be consultation and and not just Because in light of the context of the I get the point. The reasons behind treating consultation as concurrence was in view of their of their uh understanding that the judiciary had to be protected from legislative and executive interference. Right? Now, let me answer that practically. Since the commencement of the Constitution in 1950 till 1993, judicial appointments were made by the executive. Did we find anything wrong with it? Did we ever complain that there was interference by the executive in the appointment of judges or that there was favoritism or that there was nepotism? I I hope that answers your question. I will not venture into any personal um experiences, but I hope that answers your question. Thank you. [applause] We would just like to reiterate that the audience may ask questions if the opposition opposition doesn’t have any. Thank you. Uh thank you so much for enlightening the debate, Mr. Mridul. Uh it’s delightful to have you here. Uh now we would like to call upon Mr. Akhil Sibal to tackle uh Sidharth Mridul Mr. Sidharth Mridul’s speech. Thank you so much. Good evening, everyone. Thank you to the Delhi Union for inviting me and thank you all for being here on a Sunday evening. Um Justice Mridul’s reading of the Constitution uh on this issue is of course disagreed with by nine judges of the Supreme Court and according to me uh [laughter] with good reason, with good reason. The first reason that you should vote against the motion is because it’s entirely vague. You are asked to vote in favor of legislative interference without being told the nature of the proposed interference. Already we have two of those supporting the motion saying very different things about the interference. Mr. Swami says perhaps the political model of the US. I think looking at what’s happening in the US, we should take no lessons right now. [applause] The And Justice Mridul talks of the NJAC, which ensures that any two out of the six can veto the decision, which means that the final word is taken away from the judges. And I want to explain why what danger that presents. I assume that all speakers would agree as also the members of this house that the independence of the judiciary is worth preserving. To uphold the rule of law, it’s necessary that a judge decides without fear or favor, without feeling beholden to anyone or out of fear of facing personal consequences by deciding in accordance with law. A judge should not be motivated in her decision making in by any particular political leaning or personal prejudice. A judge should not in any manner be personally interested in the outcome of a case. These are some of the facets of judicial independence. I hope members of this house would agree that if legislative interference undermines judicial independence, this motion must fail. One of the key features of judicial independence is to be independent from executive influence in legal decision making. In other words, the government should have no say in deciding the outcome of a particular legal case. Independence from the executive is especially essential because the government is the biggest litigant in our courts. As it is for a citizen to challenge governmental action, whether inside or outside the court, is not easy. Now, imagine if the person deciding a case involving the government is partial to the government. The government would then be free to misuse its powers without fear of judicial scrutiny. So, the question is, would voting in favor of legislative interference mean allowing the government to encroach upon judicial independence? I would argue a resounding yes. Let me explain. The legislature is comprised of members of a party or parties in majority that form the government of the day, the treasury benches as it were. The members of the opposition are those who wish to form the government in subsequent elections. So, whether it’s the treasury or opposition members, they will always have an institutional interest, a bias in wanting to be able to influence judicial decision making because when in government, regardless of the political party, it will help to dilute the constitutional check on government excesses through judicial review. In short, at an institutional level, the legislature always wants to expand its influence over the judiciary and to control it as much as possible because a pliable judiciary is advantageous to the government of the day. Now, because of the principle of separation of powers, the executive cannot directly participate in legal decision making and cannot be a judge in its own cause. So, the next best route to interfere with judicial independence is to try and control the selection and appointment of judges. Now, imagine if you’re a litigant before the court and you have a case against the government. Comes up before a judge who’s been selected and appointed by that government. Would you not reasonably harbor a doubt about the independence of that judge from the government? It’s imperative, therefore, that primacy of the judiciary in judicial appointments is retained. And it’s not as if the current collegium system the government has no participation. Government can send back a recommendation for reconsideration. What it does not have is control, which it should never have because there’s a direct conflict of interest. In short, primacy of the judiciary and judicial appointments is the cornerstone of judicial independence and must be maintained. This is not to say, and that’s the attractive argument that will be made, that all is well with the collegium system. You can advocate as I do greater transparency and reform within the collegium system without supporting this motion. I’m a stakeholder in the system. The I believe there are areas which require im- improvement, but the functioning of the collegium uh functioning of the collegium is one of those areas, but you don’t throw the baby out with the bathwater. The judiciary, with all its flaws, still stands tall amongst institutions which have one after another capitulated to the pressures of the government of the day. The only institution the government still occasionally fears is the judiciary. And there are two avenues for holding government accountable. The rule of law, in which the judiciary has the final word, or the people who elect the government. But once in power and until the next election, who will hold the government to account? And who will hold the government to account when a popular majoritarian government tramples on the fundamental rights of citizens? In fact, even with the current collegium system and some of those on the panel uh uh supporting the motion are part of courageous outspoken few who have pointed to the unseen hand of the government interfering with appointments and transfers. There is disappointment with the judiciary not strictly enforcing its own collegium system, allowing the government to effectively defeat recommendations even when reiterated by the collegium or the government sitting endlessly on recommendations till the recommended person withdraws rather than face uncertainty and humiliation. Surely, if in the current system where the collegium operates, this is how the government is still interfering, is the solution to the problem to give greater interference to the government? I would say no. The problem lies with implementation. Judiciary must rise to instill greater confidence in the process by being opaque and not standing up to the government sufficiently by making questionable appointments and overlooking obvious choices for elevation, the judiciary has allowed a narrative to form to to introduce formal interference, but it’s a trick. By pointing to the shortcomings of the collegium system as it has operated, the government wants you to allow them a greater hold over the process. And I would say as a final comment, do not be drawn in by the appeal of an argument that points to the drawbacks of the collegium system and then proposes a vague solution of legislative interference. To vote in favor of the motion would be to weaken judicial independence under the false hope that legislative interference offers a solution. I would ask you to vote against the motion. Thank you. [applause] Thank you. Thank you so much, Mr. Sibal, for your speech. That was quite a fiery speech and I’m hoping the audience has some POIs. Uh you’re recognized. Yeah. Could someone run with the mic? Yeah. My question to you is that you have taken the view of intervention to be one which favors the government per se. That means the intervention will be that the government would intervene in order to favor itself. What about a possibility where the collegium is favoring itself as the government the government or the legislative in this case is intervening to do away with that favor favoritism which the collegium is doing. That is also an intervention. So that cannot be discounted. How do you address that? Yeah, that’s Hello. So, good question. Thank you. The distinction I would draw is that when it comes to the government, the government is a litigant. Judges are not litigants. In fact, they cannot be interested in the case which they are judging in any manner at all. So that’s what independence is. So how can a litigant have a say in who is going to be the judge? That’s a direct conflict of interest. So it’s not the same as far as you saying that you know, there’s a group of judges who may have some quid pro quo amongst themselves. It may be a small club. As I said, that is a legitimate question. It’s a question of reform. It’s a question of transparency. It’s a question of instilling confidence in the appointments they make and that is a legitimate ask. But the solution is not throw that system out and give the government greater control. That’s why I say don’t vote for the We’re good. Now we’re going to be moving on to the next speaker. Now I would like to call upon Mr. Gopal Shankaranarayan, proposition speaker. Thank you. Uh my gratitude before I start to the Delhi Union for having organized this and this tricky little substitution that I have to do for Dushyant Dave, which I discovered last evening. So pardon me if I’m not more eloquent, if at all that were possible. I just want us to just understand what the topic is again. This house believes that India’s judicial appointments need legislative interference. So what the house is called upon to do is to determine whether at all there is such necessity. That’s all. It’s not about collegium systems. It’s not about judicial appointments per se. It’s about the measure that will be taken to address the situation. If the house believes that we are in an absolutely perfect scenario when it comes to appointing judges, the house very understandably can vote saying there is no such necessity. If however the house feels that there are shortcomings and misgivings with the existing system we have to appoint high court and Supreme Court judges, even the slightest misgiving, then I believe your conscience should not permit you to come to any other conclusion except to say that we need to interfere with this system. The question then is how do we interfere? One is to have riots and overthrow all governance structures. The other, possibly a better option we would believe in this democracy, is to have a legislative interference. And in this I read it broad enough to mean an amendment to the constitution or whatever else the legislature may do. The system we are in currently, and I need to give you a lot give all of you a bit of a history on this, which is that from 1950, Article 124 of the constitution provided, as Justice Mridul read out to you, a system which called upon the appointment by the president of judges after consulting with the Chief Justice or other judges of the Supreme Court. We had that experience till 1993 when nine judges of the Supreme Court sat together and decided this system which has given us multiple supersessions, which has given us a supine judgment during the emergency where the Supreme Court crawled, this system which has given us several imperfections including senior most judges being superseded and a couple of impeachments being initiated, calls for correction. And they thought in their wisdom that a collegium system should replace this. The word consultation was interpreted, as Akhil rightly said, as concurrence, compulsively bringing the judiciary in and giving the judiciary a kind of final mandate. Now, like Oscar Wilde said in a completely different context about marriage, he said the first marriage is the triumph of imagination over intelligence. The second marriage is the triumph of hope over experience. The reason I mention this is in 1993 I can understand the judges were showing imagination and saying we don’t have another system, let’s try this one out. Where, coincidentally, the judges who authored the judgment were themselves the first, second, and third members of the collegium. So they themselves gave themselves the power to finally decide who their judges are going to be. Right? But we have had since then more than 150 judges who have been appointed under the collegium system. In these 23 years, we have had a series of examples which have shown us the complete lack of accountability and transparency of this system. And we know, and Justice Mridul probably knows this better than anybody else here, about the tradeoffs that happened within the collegium. Your guy, my guy. I know this person, you know that person. That kind of tradeoff. Right? Now, because of the proximity that judges have to the community of lawyers from which these selections take place, more often than not you will find nephews and juniors and other people that one is proximate to getting appointed. So this is the kind of imperfect system that we have had for so many years. My question to this house is that now after 23 years, it’s Oscar Wilde’s second marriage. You know what the system is. You know that your imagination has not served you well. You know that this system is far from perfect. We have a scenario today where out of 34 judges of the Supreme Court, we are in, and I’ve said this before and I’m using the expression again, disgraceful position where we have only one woman in the Supreme Court of India. This is not acceptable at all. [applause] We have casteist considerations. We have religious considerations. Of course, Mr. Sibal is right when he says these can’t be grounds for us to say that the executive should step in. But who’s saying that? We are not saying executive step in. When the NJAC came in 2014, which is the amendment to the constitution bring an an alternate system, it said you would have the Chief Justice of India and the two senior most judges, that’s three out of six, would be judges. Of the remaining three, you would have one which is a member of the executive, the law minister, and two others who would be appointed who would be citizens who would be appointed from a committee of the Prime Minister, the leader of the opposition, and the Chief Justice of India. So the Prime Minister doesn’t have a veto or control over that. So why did you strike down this suggestion? This suggestion was not putting control in the hands of the executive. So however powerful your executive is, the control is elsewhere. It’s It’s really with the judiciary still. What’s your problem with that? What’s your problem with the UK system where you have 22 members, of which only six are judges, and the rest of them are merely nominees, laypersons as they’re referred to, and members from the government and from civil society. Why don’t we have a system like that? Why are we, as far as those who are opposing this motion are concerned, coming to a conclusion that we are drawing the line in the sand right now, and we will brook absolutely no improvement. That does violence to India’s democracy. I don’t think the t-shirt that I wore in college which said, “A good lawyer knows the law. A great lawyer knows the judge.” should hold true anymore. Thank you. [applause] So, thankfully you had some very fiery speeches. Thank you for adding to that, sir. I will now open the floor up. If anyone from the panel A, sorry. [laughter] If anyone from the panel has a question, you may say so. Anyone? Okay, Mr. Gokhale. Gopal, one more factor in that NJAC was that the two people who were to be appointed by uh the executive, so to say, the committee. Those two people could in in fact veto or stall the entire process, right? They had the right. If two people out of six decide not to let something go forth, they can block it. Do you think that is fair? Um Do I think that’s fair? No. But do you think when five judges sit together in a room and say that look, let’s not go for the really good candidate who’s got a spine, who’s independent, who’s bringing the government to account. So, let’s keep him aside and let’s get my nephew in and your junior in. Do you think that system is fair? Okay, now we’re leaving the floor open for questions. So, if anyone has questions, there you go. Thank you so much, sir, for this discussion. I think my I had two primary questions, and they’re both directly relevant to speech, Mr. Shankaranarayanan. First is with regards to the issue of the trade-off. So, if you were to look at it as a creature of lesser evils, right? The issues of trade-off or representation as you rightly mentioned, could they sort of be viewed as a lesser evil than compared to the chance of an executive or legislature, given the intimate the intimate relationship legislature and executive share in India’s system, of them sort of overpowering. And second question, so sorry for the combined questions, goes to the aspect of how do we bring in this legislative interference, right? Because even if sort of a new collegium or new system, a commission is built up by an amendment that does have the challenge of the basic structure, as well as the aspect that you mentioned the UK. The UK has the supremacy of the parliament central system, while we follow the constitution to be a separate system, separate from the parliament. So, in reconciling them, how could we imagine that to go with Oscar Wilde? Look, I I I agree with this latter point of yours, and I agree with Sai as well. Completely agree with what Sai has said at the outset, that we are not a mature democracy yet. So, to believe that these kind of notions of trade-offs and we are party that you do with judges will not happen. I’m not giving you a guarantee it will not happen. But I believe that when you see imperfections in a small cohort of five or three as the case is, which are the two collegium we have, wouldn’t it be a better system if you have a larger and broad-based body? If you have say 20, 30, 40 people, whatever it is, the chances are then of the trade-off becomes, in my view, possibly tougher to navigate. Even if you have to do something like that, it becomes tougher to navigate. Plus, the requirement of accountability and transparency. Right now, we have a system where the judges are willing to hold everybody and every entity accountable to a standard which they will not hold for themselves. Right? Now, there are of course honorable exceptions, one sitting next to me. But the fact that you will then insist on those standards in every other entity and not yourself is a real hurdle. The only way we can get over it is perhaps by a measure which will bring in a more broad-based system. That’s my view on this. So, I have one question, and this is based on a clarification that I sought from Gopal just a few minutes ago. Article 79 defines the parliament and includes the president as part of the definition. And if Article 124 says that someone who’s part of the parliament shall appoint judges, there is already a legislative participation in the appointment of judges, going by the language of the provision. What more do we expect beyond that? Second, I just want to let’s say undergird this question with one presumption. The president’s role or appointment is anything but non-political. The president is ultimately elected by a college, an electoral college. And at the end of the day, the dispensation of the day has a clear role. So, as much as we would like to impute neutrality to that office, it is also the part of a polit- It is also an outcome of a political process. So, the appointee of an outcome of a political process who is a part of a parliament under section Article 79 appoints judges. My question is, what more do you want over and above this by way of legislative participation or interference in appointment? And is it your case that the government or any government of the day is less casteist in its considerations or less casteist than the judiciary at any rate? Excuse me here. Um So, on the first point regarding president, yeah, it president is considered for the purpose of Article 79 as part of the parliament, but that’s for perhaps a slightly different reason, because the president also acts as an authority who makes law by virtue of his ordinance-making power under Article 123 of the Constitution when parliament is not in session. The president’s role here, and when you ask what more do you want, what more I want is simply the fact that as things stand today, those two nine-judge decisions that we have had of 1993 and 1998, the second one came in fact on a reference by the president asking for advice of the Supreme Court. Reiterate that we have a collegium system in place, and that’s what is going to be followed. Now, the interpretation that has been given to a constitutional provision means, and that’s the system here, means that the words of the Supreme Court become part of the Constitution. That’s the way the Constitution is today. So, the the Constitution that you hold in your hands has to be interpreted in light of judicial interpretation. Now, that being so, parliament in its capacity as a legislature can make no changes today to the appointments of judges, which is why in 2014 parliament had to first amend the Constitution, insert Articles 124 A, B, C, because the Constitution itself had been changed by judicial interpretation. Consultation had been read as concurrence. So, thereafter, the only way that can be repaired is either that a 11-judge bench overrules the Supreme Court’s position, or the Constitution itself is amended. So, it’s not parliament alone which will have to make the changes. It’s parliament exercising its constituent power, which in this case will require the consent of at least half the legislatures of the states under the proviso to Article 368 subclause 2. That will have to be followed through. So, which is why I think the way forward is perhaps that as a starting point. And second, what do I really look for? Because I don’t believe that I have the imagination, I don’t have the information, I don’t have the knowledge of what possible systems we could explore. I believe that there are 545 543 parliamentarians who have been elected for this purpose, who will bring their experiences, who will bring their backgrounds, who will carry all of that into a debate, into trying to redefine, refine, expand, and create a better system. Still not perfect, but better. I think we should move in that direction. Thank you so much, Mr. Shankaranarayanan, for being so active in this debate. Now, I would like to call upon the next speaker, Mr. Prashant Bhushan, opposition speaker. [applause] Thank you. Good [clears throat] evening. When Shivam asked me to speak in this debate, I told him that uh my position is somewhat in between uh for the motion or against the motion. So, he said that that’s fine. You can say what you want, because I believe that it the the purpose of debate should not be just to score points by speaking for or against the motion, but to get to the heart of the matter and see what is the correct way forward. So, [clears throat] um as you were told, the original Constitution said that judges will be appointed still says judges will be appointed by the president in consultation with such judges etc. That led to judges being selected by the government and it’s not correct to say that uh there was no problem with that system. There were problems especially during the tenure of uh some later Chief Ministers some later Law Ministers before this collegium judgment came. There was famous Hans Raj Bharadwaj etc. who uh who who wanted to appoint uh committed judges judges who were committed to the executive. So so the Supreme Court advisedly purposely interpreted the word consultation to mean concurrence and later they said that the primacy will have to be with the judiciary and with the collegium etc. This has led to over the years relatively more independent judges being appointed. However it has not led it has not uh done away with the arbitrariness or nepotism in the appointments. There is still in the collegium system considerable arbitrariness and nepotism. But unfortunately in during this present government even that independence of judges being appointed who were more independent than the time when they were being appointed by the government even that has come into doubt and the reason is this government has exercised its uh powers of uh consultation in a very very uh unique manner. So when they don’t like suppose five judges are recommended by the collegium the government doesn’t like two of them they okay and issue the notifications for the other three but hold back these two that they don’t like without saying yes or no. The only power that the government has is to say no and thereafter if the if the collegium unanimously reiterates the government has to issue the appointment notification but they have not been doing so with the result that this government has effectively got itself a veto power over judicial appointments and the result is that we have reverted back to a situation where the appointments were being made by the government because effectively now the appointments are being made by the government except when the Chief Justice decides to have a give and take with the government. That is that the Chief Justice says all right at least appoint one that we want and we will appoint two of yours and this is also what has been happening. So and we have seen and I agree that the appointments by the uh collegium though they have been a little more independent uh little more independent judges being appointed through the collegium system than were being appointed by the executive but the arbitrariness and the nepotism remains quite a lot and therefore the appointments are not very satisfactory. So what we need when the government brought in the National Judicial Appointments Commission it was struck down on the ground that firstly you have the Law Minister in the Appointments Commission. Secondly the secretariat was with the Law Ministry and therefore the Supreme Court at that time nine judges felt that this will bring in substantial interference of the government in judicial appointments and therefore they struck it down saying that independence of the judiciary is a basic feature of the Constitution. What we really need is a Judicial Appointments Commission but a Judicial Appointments Commission which is completely independent of the government. So like in UK you have a large multi-member body called the Judicial Appointments Commission and they select the judges which has which has some lay people also and they select these judges after laying down a criteria and judging all the candidates on the basis of that criteria. Today we don’t have any criteria. The collegium has not laid down any criteria. They have not laid down any system of judging on the basis of that criteria and there is no transparency in the system. So therefore we require transparency. We need a criteria. [laughter] We need a method of uh marking people on that criteria and we need a completely independent and full-time most important. We need a full-time Judicial Appointments Commission not an ex officio body. You have to get 100 judges appointed every year in the High Courts and the Supreme Court. And for 100 judges you need to examine a thousand candidates in order to see that which among these thousand candidates are the fittest. This cannot be done by an ex officio body consisting of judges and Law Minister who are busy with their judicial and other administrative work. This needs a full-time body assisted by a secretariat etc. And therefore we do need a law which provides for an independent full-time Judicial Appointment multi-member Judicial Appointments Commission which will perform its job in a rational manner by laying down a criteria evolving a system of judging candidates on that criteria and functioning with transparency. So that’s the kind of system that we need. But of course we don’t need any direct legislative interference like in America. If you have if you give the power to the legislature to veto any appointment then of course legislature being controlled by the ruling party they will veto exactly what they are doing today. They are exercising a veto in a very informal manner in a very illegal manner but they will continue to do that in a very legal manner. So therefore we do not need any direct legislative interference but we do need a law for a Judicial Appointments Commission which is a full-time body multi-member body functions transparently and completely independent of the government. So that’s what my view is. As I said I fall somewhere in between for the motion or against the motion but I have always believed that the purpose of a debate is to take this discussion forward and not to pedantically stick to being for or against the motion. Thank you very much. [applause] Thank you. Thank you so much Mr. Bhushan. Uh if you’re wondering about the sides on the brochure there’s been uh sort of a mix-up. So uh one speaker’s on the other side the others uh I apologize profusely for it. It was just a kind of a formatting error as well. It just slipped me. Uh in any case uh before I go on and open the floor my colleague has been begging me to ask a question to Mr. Bhushan. He’s been asking me for about a week or two now so I’m going to let him do that. Rohan why don’t you come up here? Uh sir your father Mr. Shanti Bhushan was part of the post-emergency legal movement that strongly pushed for judicial independence eventually shaping the philosophy behind the collegium system. However today the collegium faces serious criticisms opacity in decision-making lack of recorded reasons and even allegations of favoritism in appointments. Sir given this how do you demonstrate that your continued defense of the collegium is based on present-day institutional performance rather than an inherited commitment to a system your own legacy helped shape? No I’m not I’m not totally defending the collegium. I’m saying that uh the collegium system brought in judges who were somewhat more independent than the previous system. Though when my father was a Law Minister he used to say I never interfered with the decision of the then Chief Justice at that time. During his two years as Law Minister he said that I always allowed the Chief Justice to decide who should be appointed. I never interfered with their selection and essentially it was the Chief Justice who was deciding after consulting such other judges etc. But yes today the collegium system certainly uh has serious problems. As I said one problem is that it is not a full-time body. Therefore therefore nepotism flourishes. See when you are not in a position to evaluate a thousand candidates and select 100 out of those in a fair and rational manner then you resort to oh I know this judge he is very good. Oh I know this judge he is very good and therefore they select those judges without evaluating the available candidates in a fair and rational manner. So that’s why I say that we need reforms in the we do need an independent full-time Judicial Appointments Commission and this system of collegium should go away and pave the way for but that judicial appointments commission must be a full-time body and a completely a body which is completely independent of the government because today we have a serious problem of independence of the judiciary and this government has been trying its best to somehow control the judiciary. Thank you for your answer, sir. We would like to open the floor to POI as now of first from the panel and then from the audience. Yes, sir. Please go ahead. So, just to get more clarity from Mr. Bhushan, if it is independent of the government who do you suggest would be members of this judicial commission? We can have retired judges in that. We can have other lay people also in that like in the British judicial appointment commission, but the selection of these people who are in the judicial appointments commission should be largely independent of the government. So, you can have three senior judges in the selection committee to select the members of the judicial appointments commission. You can even have one person from the government to select these people. You can even have one leader of opposition. You can even have some other constitutional authorities constitutional or statutory authorities being involved in the selection of the judicial appointments commission. But thereafter the judicial appointments commission it should certainly not have any member from the executive. It should be a full-time body and it should go about its job in a transparent manner. That I feel would be a better And just a follow-up. So, would you say that such a commission would be insulated from the kind of influence? See, today we have the kind of things that we are seeing is that when you have a strong almost fascist government like we have at present, nothing remains totally insulated. Sorry, just just to supplement one thought, Akhil. Is I think definitely you need to have on this whatever the system is, you need to have lawyers. We are the ones who are interacting with these judges on a daily basis as part of our profession on behalf of the litigants. I think you need to have lawyers. The problem is we have a bar council which regulates our profession which is completely political and it’s fallen apart as an institution. We have our bar associations which are also extremely political. So, the possible measure could be that in each of the courts you make a case for political interference in the judiciary. Thank you. No, no. Statutory. Statutory interference. Statutory interference. Statutory interference to put a system which will have J Sai Deepak on the committee to select judges. That’s what I’m saying. So, [applause] though knowing knowing Sai and me will never be on a committee with which will allow us to be on it. Now, just to complete what I’m saying, as far as lawyers are concerned, one measure is look at the lawyers who are the most engaged in those courts. I know this is a bad bad idea because you’re constantly thinking of richy rich lawyers who are earning a lot who are there, but I’m saying in numbers of appearances if there are people entrusted before the courts to appear before all the judges etc., they are possibly representation of the litigant public entrusting people. Like Akhil would be a great example to be on the committee in the courts for appointment of judges. He would be a clear voice. He would be somebody who’s he’s entrusted in courts across. So is So, almost everybody on this panel, I mean Sai, Mr. Bhushan, all of us. The thing is you’re not going to get people like this with the present system which doesn’t want anybody outside of judges involved. It’s only judges we’ll select our own. Our own, this is not some private recruitment of a football team. They are administering justice under the constitution. It’s not some private club for them to decide. Mr. Deepak, I’ll allow you one short point, but I must remind everyone in the panel we’re going to have a panel back and forth as well right after the break. If you’re willing to stay on longer, then go ahead. Go crazy with it. Yeah. I’ll raise the memo for all the last brief things. So, [laughter] So, here’s the point. Just one point to add to what Gopal has said and what Mr. Sibal was also hinting at. When you’re a fundamentally a low trust society you’re only going to get the lesser of the two evils in terms of solutions. And as long as that point is not made we will not address the actual elephant in the room. Self-regulation does not work in this country by and large. Fair enough, accepted. But is political interference the answer and is legislative interference is the answer is the next question. I would only request the audience to consider these aspects before you start comparing yourself with other jurisdictions with smaller populations and with greater resources to address their problems. In such a situation, I’ll I’ll just put one question out for the audience to consider even the panel as well. If you’re interested in protecting the basic structure of the constitution which preserves the identity of the Indian Republic are you better off with a pliant judiciary or a relatively independent judiciary despite its problems is the only question you have to ask yourself. I would now request Mr. Sanjay Hegde to come up on the stage and enlighten us with his words. [applause] It’s been a pleasure listening to everybody. And now let me rip. You know, as I was hearing all these quick thoughts about what what kind of judges, who makes them, this, that and the other, I was reminded of a doha that a friend of mine the late lamented Arun Trivedi once said. He told young people in the corridors of the court Rahiman corridor me sabse mil le dhai. Meet everybody in a friendly fashion. Kaun jane kaun gadha kab judge ban jaye. Of course, the those who are from the corridors know that the the word was not necessarily gadha, but it was something out of the gangs of Wasseypur. But that [applause] But let that be. Let me illustrate the problem. Who was it? I think it was Prashant who said that you know all this collegium came about in the time of a later law minister. In the ’90s. He named the person, but I’ll I’ll refrain. But it was Ram Jethmalani who at that stage said there are two kinds of judges. Those who know the law and those who know the law minister. Now, it was to solve that problem that in Gopal’s picturesque imagery we had a triumph of the imagination. We had an imagination where if the judges started appointing more judges and we kept these pesky politicians out of it we would have truly independent products of an immaculate conception. Messiahs for the judiciary. But has that really come about? I will take Mr. Sibal’s caution that you know do not judge what the collegium has produced. There are problems, but that is possibly the most independent solution. To Mr. Sibal, my respectful answer is that look, in India we had a law minister who looked at a former politician who had briefly adorned the bench I and he thought it would be a good idea to bring him to the Supreme Court. So, he made that man resign. And he come and get appointed to the law commission and to thereafter to bring him to the Supreme Court. The law minister died in an air crash. That man thought that his Supreme Court hopes were over. But no, he was appointed to the Supreme Court. And almost soon after he was appointed I during a vacation came that came a very important case. The Prime Minister had been disqualified by the Allahabad High Court. And it was up to this man to consider what had to be done in that circumstance. And he did not it was Justice Krishna Iyer who did not give the Prime Minister and the government that appointed him a full stay of what was one of Prashant’s earliest exploits in the law. It was Prashant who with his father fought Mrs. Gandhi’s election petition in the Allahabad High Court and got the Allahabad High Court to disqualify her. He he he wrote about it, of course. I’m sure that you did much more than write a book. But my point to you is simply this. Do not assume eternal gratitude of the appointee towards the appointer. The theory of judicial independence runs very deep. It is said that the robes of office change the man within. It was in the medieval ages it it was Thomas à Becket of whom the king had appointed as Archbishop of Canterbury who stood against the king. Till the king said, “Will no man rid me of this turbulent priest?” Independence comes from the person. It does not come from necessarily the appointment procedure. You can have people who are appointed by by politicians who turn out to be very good judges. And you can have people who are the apples of a certain judges eye who turn out to have uh to to be less than what is required. So, what the real problem is that the country requires independent judges and a good system of choosing. Now, what has the collegium actually brought us? To my mind, the collegium has brought us a set of careerist lawyers who have always played safe. They dare not speak up. Very rarely do we get people who are appointed and who make it all the way to a place that counts. Mr. Uh Justice Mridul is here. He has left his mark. There are a few people through the collegium system who have despite the requirements of safety, the requirements of being nice to every possible appointing judge of being of sub simile mil mil ya die. Despite that we may have a certain amount of independent judges, but the question really to be asked is could we have had more? And would we not have had more had the scope of consideration been broadened? The scope of consideration to go much beyond oh, I know this man. I think he would make I think he could he could make a good judge. And the only way to have a greater interface would be to my mind to have the people voice their their choices through their elected representatives. I don’t say that uh you give them a veto or you give them the power to appoint. But please do consider the choices that they make. If they say that they this man was a good lawyer. I I think he’d make a good judge. That is as good a recommendation as a collegium judge saying, “No, no, no, that this man he he was my junior. He was good when he briefed me and I want to make him a judge.” I I actually think that independence of the judiciary can be best achieved by having as broad-based a process as possible and that the politician is certainly not is certainly no touch-me-not. Uh just to illustrate that point again the it was a prosecutor who became a governor of California who was the vice presidential candidate of the Republican Party in a year that they were expected to win the presidency. Later on was appointed the Republicans lost that year and later on when a Republican president came in they appointed him as the Chief Justice of the Supreme Court. Justice Earl Warren was proved so independent that President Eisenhower later said, “That was the biggest damn fool mistake I ever made.” So, therefore, never ever assume that only the immaculate conception of the collegium will give you judicial messiahs. Thank you. Thank you so much, Mr. Hegde, for such an entertaining and enlightening speech. Uh unfortunately, due to shortage of time, we will not be entertaining any POIs for this speech. So, now I would like to call upon the last opposition speaker, Mr. Vaibhav Gagar. [applause] Thank you uh for having me here. I’ve had the benefit of listening to everyone, my esteemed panelists. And therefore, I can um you know, afford to kind of take off from where they left. I I just had this outset I I must say the topic is interference should be promoted effectively by the legislature. Because there isn’t enough interference already. Our system and I heard each of our speakers especially the ones who are in support of the motion saying, “Yes, there should be interference.” But each one of the speakers confirmed and corroborated that in fact the legislature and the executive have an integral part to play already in the judges appointment process. So, what are we saying? That the bar should be made even higher. And we should have more legislative interference because we do not trust the judicial system, the collegium system, and we would rather trust the legislature and the executive about it. Interesting. Because theoretically it may sound good, but let’s look at it practically. We, before the collegium system came about in the ’70s, everyone would have heard about it. Some have lived through it. We had the system where it was the executive which was appointing the judges. We had ADM Jabalpur. We had Kesavananda Bharati, 7:6. Out of the seven who were in majority three judges who were supposed to be moving towards becoming Chief Justices were superseded. Why? Because they did not agree with they did not pander to what the executive wanted. You had Justice Shelat, Justice Hegde, Justice Grover who was superseded by Justice Ray because these three were in the majority in Kesavananda Bharati. Who brought about the basic structure doctrine, by the way. And then you had ADM Jabalpur where you had Justice Khanna superseded. And all four of them, subject to correction I believe resigned. And that is the system that we want back. What are we even debating here? Yes. Is the collegium system perfect? Of course, it isn’t. But show me anything that’s perfect. Forget a system. Show me anything that’s perfect. Can it be made better? Needs to be made better. But would it be the legislature’s interference which is going to make the system better? The arguments that I heard on that were make it broad-based. Of course, sure. The collegium system can make it more broad-based, but that’s not legislative interference. Make it more transparent. 100% make it more transparent. But there have to be checks and balances within that as well because you do not want to be discussing publicly about certain people who may not get appointed. It’s not fair to them. Make it more robust inclusive. Sure. But what has that got to do with legislative interference whatsoever? The topic itself to me was we are effectively asking for the basic structure to be demolished. Everyone agrees there are checks and balances. Are there no checks and balances? All my esteemed panelists over here spoke about it. That you cannot appoint a judge even if the collegium wishes to unless the government of the day is with you. They’ll recommend the government will sit on it. They’ll recommend again and the government will sit on again on it again despite judgment after judgment saying you’re not allowed to do it. And therefore the argument is that we want to now empower the legislature further, the executive further so that they can jam the entire system. If it comes to it, I am saying actually the bar needs to be significantly lower. I’m saying the system needs to change but there has to be far more empowerment to the judiciary, to the collegium to in fact appoint and there needs to be far less interference than what is already there. My learned friend quoted Dr. Ambedkar. I just like to read out that line again. Because I I I’m just tying up certain ends. Mr. Hegde said it’s not the system, it’s each individual. His independence is not defined by the system. If he’s going to be independent, he’ll be independent no matter how he’s appointed. Let’s Let’s just see what uh Dr. Ambedkar in fact said in his speech. The lines were the it was for the creator Chief Justice. So, I’m going to transpose that for judges. The Chief Justice, however distinguished, is after all a man with all the failings, all the sentiments and all the prejudices which we as common people have. How does that not hold good for the legislature? How does it not hold good for say in the NJAC, the people who are there? How does it not hold good to what Mr. Hegde just said? If it is the independence of an individual and you are Dr. Ambedkar in the constituent assembly debate doubted the independence of the Chief Justice potentially how are we going to believe that every other person is not going to be worse off? There has to be some sanctity to it. There was an example of the US. I mean, quite apart from of course the systems are totally different. But we do know what’s happening in the US, isn’t it? It’s a 6 is to 3 conservative. The tariff judgment was the biggest blow and an exception to every rule where historically it is hardly ever happened. Do we want to be in a system where the judges are really appointed by the government? And do we really believe that they’re not going to pander to their interests thereafter? I just gave you the examples of what happened in the 1970s. Why would we believe that history is not going to repeat itself? And then coming to the collegium system with all its failings the collegium system has still produced some phenomenal judges. In the midst is one. And there are some other fantastic, beautiful judges who’ve been there. Independent to the core intellectually, financially there is no question of any bias. They may have their prejudices like every other individual or human being would have. But that’s the same collegium system which has actually done that as well. There was a statement I just heard why should it’s become a system where the lawyers are careerist careerist lawyers was the word. Careerist lawyers are now becoming judges and careerist lawyers would not antagonize the judges therefore. All of us sitting here know that some of the finest judges who’ve been there have been the most vocal have been people let alone pander to egos, have gone and fought this out. I I don’t want to be personal about it but some of the leading senior counsels who’ve even been appointed directly to the Supreme Court most of the finest judges the high courts have have actually been very very very good lawyers who’ve been independent. And a lot of the judges unfortunately who have who are who may be there right now, whichever government it may be, 70s was the Congress. Times change, wheels of time turn. But but a lot of the judges today who get this wrong are probably political appointees as well. So, why blame the collegium for it? Because the collegium can do squat little if the government is not willing to play ball. There was an example given, we’ll have one of ours government, you have two of yours that horse trading is happening. How is that going to get better with more legislative interference? That can’t possibly be an argument over here. So, I would request therefore since I’m running out of time, I would request therefore to really um up you know, the opposition to this motion I think needs to be supported. It would be a very dark day if there was going to be more legislative interference let alone any. Thank you. [applause] Okay, thank you. Thank you so much to all the speakers. Unfortunately, Dr. Swamy has uh had to go somewhere and due to his um old age as well, uh he’s been excused. So, in fact he didn’t like the speeches, that’s why he left. That’s the thing we’re going on. Um so So, now I’m going to allow uh both of our sponsors, uh that’s that’s the Culture Plus Foundation first, uh to come up and say a few words and after that um Mr. Manu Abhishek Bharadwaj who’s a stand-up comic will be thanking SCC who who are our media sponsors as well as uh giving a few lines of his own. Uh Mr. Kidwai. [applause] So, good evening everybody. I’m a student of law myself at the National Law University in Jodhpur. And I’m here as a volunteer here with the Culture Plus Foundation. And we’re truly delighted to be working with the Delhi Union. Dekhiye log kehte hain ki Delhi ek sheher nahi hai, ek mehfil hai. And hats off to the Delhi Union for keeping this mehfil alive in their own way. Our foundation also began in Delhi and will always have its roots in this city. This is There is something about Delhi, the its history of debate, poetry, protest music and argument that reminds us that ideas matter here. And conversations that happen in the capital have always shaped culture, law and public life. Now, the Culture Plus Foundation began during the COVID-19 lockdown uh where artists suddenly and unforeseeably lost their audiences and as a result their source of livelihood as well. We started with a simple paid forward idea where more established artists contributed towards lesser known artists and they in turn contributed towards their own network. And what began as an emergency response gradually grew into a larger commitment to building more visibility and more sustainable opportunities for traditional as well as independent artists. We’re very lucky that um Mehak Sethi and his wife both deeply respected photographers were kind enough to donate photographs to help raise funds for our foundation. Mehak himself is an advocate and began his professional career in law. He’s also worked at the Supreme Court as well as at the UN before choosing documentary photography as a way of engaging with real human stories across the world. He’s worked in extensively with the World Health Organization. Now, if you guys scan the QR code on your brochures, you will see that the photograph he has donated uh captures something very unique to Delhi. It is the the remarkable tradition of Sunday Kushti at Chandni Chowk which uh and the Delhi Union team has quite aptly uh titled the series Public Discourse which I think is quite fitting because clearly in Delhi uh debates can occur both across the table and in a wrestling akhada. Though I must say that today’s debate is thankfully uh less physical. Now, we’re equally grateful to uh Ms. Rupika Saharan. She’s the director of the Delhi chapter of um Each One Teach One which is an organization that has worked over four decades to support children from underserved communi- communities uh through education and holistic development. For our Delhi Union initiative uh the students involved with the Each One Teach One organization have very thoughtfully donated paintings that depict monuments and landmarks in and around Delhi. And the funds raised today uh will go directly towards supporting the foundation’s work and directly back to the children who have created these paintings. Uh now I’d like to end by saying that loyal and efficient work in a great cause, even though it may not be immediately recognized, ultimately bears fruit. And platforms that encourage good faith discussions and thoughtful debates are of ever-growing importance in today’s date. Now, uh the Delhi Union is contributing quite meaningfully to that culture of engagement and thank you everybody for being here. [applause] So, uh we we have about three aside still left if if you guys um have the time. We have another SCC thank uh great grateful speech and as well as a stand-up comic set to to go. We’ll be done by about 7:45. Does that work for everyone? Okay, thank you. Thank you so very much. Uh another another request is there will be some pre-debate polls. Uh there’ll be um some papers handed out to all of you. Can you pass them on to the person sitting in the alley so we can get them collected and uh get a little vote um semblance, yeah? And Yeah. The post-debate poll doesn’t have to be given yet because the debate isn’t over. Yes. Now, I would request uh Mr. Manu Abhishek Bharadwaj to A thank the SCC as well as uh perform his own set. And he’s a very renowned stand-up comic as well in the legal circle, so I’m sure you’ll enjoy this. Uh I’ve read it and you’re in for laughs. Thank you. [applause] Today, I stand in front of the High Court of the Constitution Club of India. I am Manu Abhishek. No, not that one. Don’t be shocked. I’m not here for a mentioning, especially not for Mr. Kejriwal. There’s a huge difference between my namesake and I. He recently declared an annual income of rupees 374 crores and I recently declared bankruptcy on my way here to the auto driver from the metro station. No, I’m just kidding. I I have a handsome sum of rupees 15,000 against my name. Udhar in the Delhi High Court canteen. [applause] Too much chicken biryani. Mr. Sanjay Hegde would relate. [laughter] First is First First things first, a big round of applause to everybody. Thank you so much for attending. Thank you so much for taking your time out and coming here on a Sunday evening and instead of going to watch Dhurandhar 2. And don’t worry about Dhurandhar 2. Don’t worry about Dhurandhar 2. If you don’t want to watch it, Mr. J Sai Deepak has a 14-tweet review of the movie. [applause] Which is Which is somehow longer than the movie itself. Peak peak detailing by Aditya Dhar. [laughter] And you know what? I honestly, I don’t get the hype of Dhurandhar. It’s just Dhurandhar is just the same five men talking for 4 hours straight and making a lot of money. If If I wanted to see the same five men talk for 4 hours straight and make a lot of money, I would just log into any Supreme Court proceeding on a Tuesday morning. A special thank you to Justice Mr. for being here. I truly I truly appreciate your presence because it’s a Personally, it’s a very hard time to be a standard standard comedian in this country right now. And when they arrest me for making the jokes, I’ll show them the recording and say you have to hustle it. Now, we are both co-accused in the FIR. This is how I strengthen the relationship between the bar and the bench. I’m the Right now, I’m the most scandalous person in the room as ever since Dr. Swami left. But [laughter] So, st- sticking on the topic, does the Indian judiciary need legislative reform? I’m a huge huge advocate of for the independence of judiciary. I prefer my judiciary just like my coffee in the morning without the home minister’s hands in it. No, no, no. The Indian judiciary I I really respect the Indian judiciary because they’re very strong, very independent, very fearless. They’re not scared of anybody. Not the executive, not the legislature, not any senior advocate, not even any eighth standard NCERT books. [cheering] [applause] Probably the only thing which scares the Indian judiciary the most is an uneducated random Rahul or a random Rhea Rao uh in the comments section of a misreported Live Law or Bar and Bench article going, “Is this the state of the Indian judiciary? There are too many cases pending and they’re going on vacations.” Rahul, relax. Just go watch some real news first. And speaking of real news, I would like to thank our sponsors, SCC Times. I would like to take this moment to thank them for bringing us the best analytical legal news since time immemorial and letting every poor little law student have access through password sharing. A round of applause for SCC Times, please. Speaking on the autono- autonomy of judges recently, uh Supreme Court Judge Honorable Justice Manmohan remarked that the High Court a High Court Judge can only function when he has the full power and authority. He cannot be scared of a transfer. You have to empower him. You cannot emasculate a judge by putting the fear of transferring him. To which, sitting at a distance in his Maruti Omni Van, Justice Muralidhar replied, “LMAO.” On the other hand on the other hand, Justice Dipankar Datta of the Supreme Court recently raised concerns over the opacity surrounding the functioning of the collegium. He said that even judges don’t know where the collegium system sits. And somebody on Twitter replied, “Probably 4S Bar Defense Colony.” Somebody Somebody else said, “Gymkhana Club Young Peop- Gymkhana Club Young People Night.” But we But we all know the the collegium actually sits at the Ritz Taj Mansingh. But here’s a question for everybody. Here’s a question for everybody. How many collegium members does it take to change the light bulb? According to the official website, the collegium last changed the light bulb last changed the light bulb on the 7th of redacted at around redacted a.m. on the meeting held at redacted Bhavan with the presence of four judges, namely redacted, redacted, redacted, and Justice redacted. This is somehow more redacted than the Epstein files. And yes, yes, yes, I do believe that the collegium system can have more accountability just like my ex-girlfriend, but But that doesn’t mean that doesn’t mean that Nemo should not be judex in causa sua. Here is another question. Tell me which parent scares the collegium system the most. Transparent. Uh As long as they qualify as trans people under the new Transgender Persons Act. Uh I had a lot of jokes about the government, but I do not want my account to be removed under Section 69A of the Indian IT Act. Okay, also Honorable Justice Dipankar Datta also recently said that many good lawyers refuse refuse judgeship since pay is not sufficient and judges should be given more monetary incentives. However, the authorities soon confirmed that the funds which were allocated to incentivize the judges unfortunately burned in a fire in a small storeroom [cheering] located at 30 redacted redacted, New Delhi. I have some jokes in red which I will not say. [laughter] But here’s the last joke. And also also uh the auction rights for my pro bono anticipatory bail will be done after the event, so you can bid for that. Last joke. A stand-up comedian, a policeman, and a lawyer walk into a courtroom. The policeman says, “My Lordship, uh heinous crime has been committed.” The lawyer says, “Your Lordship, no crime has been commit- committed.” The stand-up comedian says nothing because we are not allowed to speak anymore. Thank you. I’m Manu Abhishek. That’s been my time. [applause] As the organizer of the event, you can imagine I’m sweating quite a bit uh standing there. Uh but thank you. Thank you so much, Mr. Abhishek, for uh those kind words. Uh in any case, now now we’ll be moving on to a head-to-head. I am basically going to leave it up to the six speakers to ask one question each from the opposition to the proposition and proposition to the opposition, and we’ll be done in about 10 minutes. Uh so, would the proposition like to ask uh the first question? Or any concluding remarks, anything of that sort? If If you don’t have any questions, we can leave it up to the audience. I’m quite sure a lot of people are waiting. Let’s leave it to the audience. Okay. Absolutely. I have one question, though, for uh Vaibhav. Vaibhav notably mentioned the ADM Jabalpur and the Kesavananda Bharati case. Uh what is his opinion about the Ayodhya judgment? Totally validates my motion, doesn’t it? There needs to be less uh judicial Sorry, legislative interference. Well, I disagree, Mr. Gaggar, that uh there was no there was no legislative interference as far as Ayodhya was concerned. I I think the cl- No, the the [applause] My point was something slightly different. I’ve often I I don’t know who originally wrote it in French. I was told that there is a sentence which says that if you are given an order, you tend to resent it. But if you can anticipate an order, then you revel in your cleverness. We have some very clever people on the bench. [applause] May I respond to Uh yes, Mr. Deepak, you may. When the Allahabad High Court judgment was delivered in the context of Ayodhya, it was delivered with supposedly no pro-temple friendly government either in the center of the state. And that judgment was much more extensive than the Supreme Court judgment. And therefore, I would like to presume that Justice Madan’s question was about the Allahabad High Court judgment and therefore that proves the case that if left to its own devices, the judiciary is capable of delivering the goods. If anything, all the examples cited by Mr. Hegde are exceptions and exceptions are typically proof of the norm. And here’s what I would like to submit and this is for the audience to consider as well. You have to realize just one point here and which is legislative interference, as Mr. Gaggar rightly pointed out, or even executive interference, already has resulted in several excellent candidates backing out of the contention for the purposes of the bench. In fact, the bench has lost a lot of good people primarily because they don’t want to be the sub- subject of this kind of, let’s say, tug war, let’s say, tugs, so to speak, on a regular basis. If you were to facilitate this through some kind of a legislative intervention which gets cast in stone, then I suspect that whatever little incentive people may have at this point of time to become a member of the bench, so to speak, even that would completely vanish and that would completely disappear. I’m very clearly of the view, and this is something that I’ve said in the past, that accountability is something that you must expect from the judiciary. Transparency is something that you can mandate through the law. You can do all of that. But if the question of accountability is used to conflate the question of appointment, then you will have nothing but rank mischief with respect to the appointment, which is ultimately supposed to be a constitutional appointment. There’s a reason why the president is is is made responsible for this. So, I would request the audience to take this into account and keep your political and ideological proclivities out of this question because this is more a question of protecting the institution. And here’s something I’ve always said in my public discourse, I’ll just repeat this once. If you feel that the judiciary must be pliant to the government because it helps a party which you vote for, operate under the assumption that a party can lose power and it cannot constantly stay in power for eternity. What happens when the shoe is on the other foot? And when the opposition, so to speak, or a party, so to speak, that you don’t vote for or that you have a particular anathema for comes to power, where do you run then? Because by then, you would have contributed to the compromising of the judicial establishment altogether, leaving absolutely no resolution for your woes. And those who were in the opposition, at least until 2014, must remember this because ultimately it was the judiciary that managed to come out with several verdicts which turned the tide, if you really want to get political about this. And I wish Mr. Bhushan was around here to actually make that point. So, at least when it comes to institutional respect and institutional responsibility, I would suggest, notwithstanding my public positions on certain issues, keep your ideological proclivities outside the question of institutional importance and institutional independence because without institutions, all of us will be subject to the whim of a despot, whoever that may be. So, so now we will be entertaining audience questions for exactly 10 minutes. So, uh the gentleman over there, can somebody run? Uh good evening, everybody. I thoroughly agree with your remarks that it should be independent because irrespective of the party you vote for. But uh I still go by your verdict. It’s hope over experience and uh appointment over plantation. And uh I know this lawyer, he’ll be a good judge. This is okay. But this is not acceptable that I know this lawyer, his son will be a good judge. And uh interference is inevitable. We are in democracy. I think we can take an example of some of the communist countries or some of the other governments or countries where the judiciary is working fine. The state of democracy example ko leke America ka example le liya hai kisi aur country ke le liya they that didn’t work. We have to see as per the merits. And uh authority over responsibility, uh one I would like to add one more point, it’s mental maturity. Because your current system here usme hamare ko Supreme Court ke judge ka jo remarks hai, people have started using shoes with the hands, which is not correct. Thank you. Thank you so much, sir. Uh I would also like to urge wonderful, wonderful analysis, sir. Uh but I would like to urge everyone, keep your questions short, precise, to the person on the panel, perhaps. And and and let it be a question. Anyway, thank you. Thank you so much, Dusa, for that wonderful analysis. Anyone else who has a question? Uh Hello. Uh sorry, one more thing before we before you ask a question, post ballots, get them out. Hello. Uh first, my question is to Saide Buck. Uh He He made a point uh in his opening statement that every time the executive fails, uh the people of the nation have the faith on the judicial institution. So, there’s a counter example to it. Uh the Places of Worship Act 1991 passed by the P.V. Narasimha Rao government, why the judiciary kept its silence uh at that particular time? Uh why the uh religious faith of the people was not addressed by the any court? Right. Can I respond? Yes, sir. Are you a law student? Okay, fine. So, then I’ll ask. Great. Fair enough. So, my brother in that sense is former brother. So, I don’t know how much you understand of how the legal system works, but it’s not as if the judiciary can of its own motion choose to challenge a legislation that the Parliament has passed. It is ultimately for the interested parties to go before the court. That’s how the system works. So, it’s not as if the moment a law is passed by the Parliament, it becomes the responsibility of the judiciary to test it for its validity because it’s for the affected parties to come to court. So, that’s how the system works. Second, has the Supreme Court rejected the challenge to the Places of Worship Act which is currently pending? No, it’s not. It’s still pending, right? So, don’t expect the system to work on its own. People also have to play a role in it. If you have a problem with a law that is enacted, then it is for you to come to court. So, the court operates as a forum which is willing to act at your moving. So, the prime mover of the action has to be the litigant. It can’t be the court itself. That’s the technical answer to the question. Okay. Uh the gentleman I I said yes to someone, I remember. Yeah, you. Sorry. Hi. So, my question is to the whole panel and uh it comes in two parts. So, the first part is that uh I guess there should be whether we should replace the collegium system or not. Would the entire panel agree with that there should be some legislation on, say, increasing maybe transparency in appointment of judges or maybe making certain restrictions that relatives of past judges cannot be judges. And uh maybe strengthening the executive in ensuring that transparency is maintained. For example, empty PDFs are not uploaded where uh your uh assets have to be declared on the Supreme Court website. So, these things are not happening. Uh would the entire panel agree with this regardless of whether NJAC or collegium comes? I don’t think anybody on the panel, whether they’re for or against the proposition, has disagreed with the requirement of greater transparency as far as the collegium is concerned. I think we’re on the same page there. Just I just want to add today what the motion uh suggests and what the those in favor of the motion have tried to impress, Gopal in particular, if you feel there’s something wrong, something which requires change, vote in favor of the motion. But just consider what the motion is proposing. It says, “You’re unwell. Here’s a pill. I won’t tell you what’s in the pill. It’s unmarked. I won’t tell you what I’m offering, what ingredient, what active ingredient is in the pill, but take it. If you’re feeling unwell, take this unmarked pill, not knowing whether the medicine is worse than the disease.” Yes. Sir, but that’s where my second question is, that when we have a collegium Sorry, can we let Mr. Hegde respond first? Oh, sorry. Sorry. Sorry. I’m so sorry. We’re going to have to go to someone else for the second question. I’m really sorry. I’m just taking the analogy further. I am saying that the medicine that has already been consumed is the one that’s making you ill. So, stop taking that medicine. Okay, so that’s a direct flash point. I’m so sorry. I’m going to have to take this gentleman right here. Right. So, my question is to those on the panel that oppose the NJAC. So, the NJAC was a constitutional amendment passed unanimously by Parliament and ratified by over 20 state legislatures, representing arguably the most emphatic demonstration of democracy our country loves. Through the legislature, five judges struck it down using a doctrine they themselves made without any public reasoning. And with RTI applications about the collegium’s own functioning consistently turned down by the court. Now, the same institution that struck down the amendment routinely demands transparency from the executive, accountability from the parliament, and defense from the public. My question is this, how do you defend asking a democracy to accept the outcome of a body that holds every other constitutional institution to rigorous standards of openness while considering itself exempt from those very standards? At what point does this not become independence but exceptionality? I completely agree with the sentiment behind the question. But let me just actually dispel the insinuation based on the example that you gave of the NJAC. Going by that logic, then I don’t think any number of judges, including had it been 34 judges of the Supreme Court, should have had the power to restrict the power under 368 in terms of amendment to bring in a concept such as a basic structure doctrine to pare down the the limits of amendment uh the the amendment powers of the of the parliament, so to speak. So, I don’t think numbers make a difference here. The question is very simple. You expect a certain group of people to be over and above the political process for the simple reason that there is as Mr. uh Sibal pointed out, there’s a direct conflict of interest. If the person who you appointed or who has appointed you becomes a litigant in front of you, then can you be expected to be fair, just, and transparent? One of the things that typically is expected of a judge when let’s say when two private parties are warring before a bench is to recuse himself or herself or themselves, depending on who the person is, if there is some conflict of interest. We are being told suspend that particular assumption when the party who’s in front of the judge is responsible for that very office or the occupation of that office by that particular person. And then put faith in the person’s independence and hope that despite that benefit being bestowed upon him or that blessing, he will continue to be independent or or he will suddenly rediscover his independence. Then you might as well junk all rules of conflict of interest or all rules of any kind of independence or any kind of disclosure between two private parties. What would apply to two private parties before a judge would equally apply to a government party. Now, on the question of remedy, let’s be very clear. We are not saying, and I hope the rest of the members of the of this side would agree, we are certainly not saying that all is well with the collegium. And please remember that was not the motion. The motion is of legislative interference when it comes to judicial appointment. Now, if you were to come up with suggestions with respect to how the collegium can be addressed, and if the motion had been is the collegium perfect or is the collegium beyond any kind of reform? I don’t think anybody on this side would have actually said, “No, it’s beyond reform.” This is certainly not a book of revelation from any other place, let’s say in the Middle East, which finally says thus far and no further, and there is no further reform possible beyond this. So, I don’t think that’s the argument being made here. So, remember that the question is not about whether the collegium is open to or is capable of being reformed further. The answer to that would be a resounding yes. But would legislative interference be the solution? I think that’s where we draw we draw the line in the sand. I I I just want to respond to what Sai just said. The day after tomorrow, the two of us are going to be arguing in the Sabarimala reference. There we are going to be saying, we’re on the same side, we’re going to be saying that religion requires to reform religion requires to reform itself, and outside entity shouldn’t be stepping in. Particularly, courts shouldn’t step in to say what the religion should or should not be, however awful you think and arbitrary uh some practice in a religion may be. Judiciary is not like religion. This is where I disagree with Sai. I don’t think you can leave it to the judiciary to reform itself. Judiciary actually plays an integral part of the constitutional mechanism. To respond to the question that was just placed, the reason why the judiciary is trusted and you go to the judiciary is precisely because they are unelected. Their legitimacy comes from the fact that they are not elected. The parliament gets its legitimacy from its being elected. But parliamentarians sign up to a constitutional system knowing that even if all 545 or 543 of us now agree on a particular principle to be made law, it is still going to go through adjudication under the constitutional scheme, and the constitutional will prevail as interpreted by the judiciary. Problem is this last interpretation that they’ve given saying that having three out of six members of the NJAC upsets the independence of the judiciary, obviously creates rankle, particularly for people who want to see reform in the judicial system. Where we disagree is does it have to be through a statute or through the judiciary itself doing it? The judiciary itself hasn’t done it all these years, and there is no mechanism by which the judiciary itself can do it. Petitions have been filed repeatedly. I remember the first time the NJAC case came up, it came up before Chief Justice uh Lodha’s bench about how to reform the system, and his response was, “I am from the first round of collegium appointments. Justice Nariman who’s sitting next to me is from the last round of collegium appointments. If you raise a question mark on the collegium system, you raise a question on the two of us.” Both of them, exemplary judges, but they are not evidence of the perfection in a system which is otherwise severely flawed. So, sorry. I just If I could just illustrate the problem. We all like cricket. Now, imagine the situation where the cricket team itself decides without the help of selectors as to who their successors will be. So, then if you’re on the right side of Dhoni, then you get into the team. It is not as if Dhoni, the captain, is asked by the selectors and then said, “Okay, what kind of team do we need to form? Okay, we’ll pick we’ll pick these.” So, therefore, the question of the judges appointing themselves and becoming a self-perpetuating elite and a player, that is deeply problematic. And over the years, what has happened is that we almost see judicial generations, and it is now almost a given that uh there will be a third generation of judges or a fourth generation. That in a country of 140 crores, I think is narrow tailoring where a broad basing is required. Mr. Deepak. Mr. Sibal on the yes. Just two things to respond. I whether it’s cricket or any other selection body, I think experience tells us that it is not as independent as one might want it to be. So, one can romanticize that you’ll have these independent selectors, they will be neutral. That’s not the ground reality. Plus, the fundamental distinction is that the the selectors are not playing the game. Whereas the executive is the participant. It’s a litigant. It’s before the court pleading its case, not in one but lakhs and lakhs and lakhs of cases. It’s the biggest litigant. So, giving that power to the litigant is the difference between all of these examples. The other thing Gopal said that the difference between us is whether you introduce this change through a statute. Let me give another example. We have several statutes that have set up tribunals. These are by statute, the qualifications are prescribed, and these are tribunals for specialized areas intended to take the burden off the courts like electricity disputes, service disputes, company law disputes, and so on, bank loan disputes, and so on. All of these tribunals, the general consensus amongst practitioners and judges is that these tribunals have been a failure because the appointing authority ultimately, the emoluments, the office, the car, the perks, everything comes from the government. So, the government’s hand is throughout the process. This is done through a statute, all by legislation, parliamentary interference. And these tribunals are facing deep corruption allegations, incompetence. We don’t have the best people coming forward. So, I would only say that you’ve had these romantic suggestions being made here that there are these few individuals who are exceptional, therefore we should trust the government. Do you really want to trust politicians to decide who become judges? Think about it. Okay. Uh thank you. Thank you so very much uh everybody for uh attending this debate as well as all the speakers. Now, the much-awaited moment, who won? Uh can we can we have a little Okay. Who thinks the proposition won? You guys voted for them. Okay. Who thinks the opposition won? Yeah, that’s right, but uh the opposition has won uh with a 5.56% positive change, which means pre-poll people who voted for the opposition versus post-poll people. So, you’ve managed to convince 5% of the people to shift. Well done, and thank you all for attending this debate, and hope to see you in the next one. [applause] [cheering] Which is, incidentally, about whether the reservation system for caste should continue. So, yeah. Thank you so much.