Thread by @barandbench

Webinar on "Who Governs? Government, Parliament of Judges?" to begin shortly.

The speakers are:

- Lord (Peter) Goldsmith QC, PC, Former Attorney General, UK
- Senior Advocate Arvind Datar
- Pratap Bhanu Mehta, Political Theorist
- Senior Advocate Gaurav Pachnanda

Webinar starts. It is being live-streamed on YouTube here:

Lord Peter Goldsmith responds to a question on why the UK has a Supreme Court now.

In one sense, it is just a change of address, he notes, adding that the judges remain the same, the power remains the same.

But, notwithstanding, it has been a major change, says Lord Goldsmith.

LIVE now:

Senior Advocate Arvind Datar fields question of the system of appointment of judges in India.

Datar says that there is no empirical evidence to state that the Collegium system has appointed less able judges than would have been done by NJAC.

The Collegium has given outstanding judges and has been able to block the appointment of certain undesirable appointments as well: Arvind Datar.

Datar adds that he would not say that the Collegium system is free from defects.

But the solution is to iron out the defects through small changes within the system. The system can be tweaked, he notes.

To do away with the system is to throw out the baby with the bathwater.

The goal is to get the best judges. Both the Collegium System and the NJAC are only a means to that end: Datar

The difficulty comes in when the goal is not to get the best judges, but rather to control the system, rather than appoint the best judges, he says.

Arvind Datar adds that the NJAC act was flawed in terms of its Constitutional Amendment, and fatally flawed as far as the statute was concerned.

Senior Advocate Gaurav Pachnanda asks Prof Pratap Bhanu Mehta Q on whether the growth of Executive power.

Executive power - almost untrammelled power- has grown in Indian democracy, Prof Mehta says.

Prof Mehta adds that there are 2-3 long terms causes for the growth of executive power.

1. National security interests

Prof Mehta observes that it is difficult for the parliament and the courts to interfere when the State acts citing national security interests.

Prof Mehta refers to the fact that we have sedition law, UAPA - the fact that the State can do anything in J&K without the interference of the Parliament and the courts.

It takes a brave judiciary to take a stand. And unfortunately, the judiciary has let us down, he adds.

2. Growth of the administrative State.

It takes an extremely sophisticated parliament to check on the growth of the administrative state, Prof Mehta says.

Watch it LIVE here:

Right now I cannot, in good conscience tell you what Indian Constitutional law is: Prof Mehta

He adds that he is often surprised when lawyers and judges profess to know what it is.

The discretionary behaviour by the wings of the State, especially the courts, has effectively negated all the basic rules, Prof Mehta says, adding that there is:

- no integrity
- no predictability
- no sense of where stare decisis applies and where it does not

Courts are not prepared to pass laws on aspects that have large ramifications: Arvind Datar

To illustrate where the Court has gone beyond its powers, Datar cites the BCCI case SC imposing Diesal cess.

"It has gone out of hand."

Arvind Datar adds that it is time that clear rules be laid down for the filing of PILs.

Prof Mehta speaks on how lawyers influence the rule of law and the sanctity attached to it.

No other profession can take the lead on this than the legal profession, he says.

When the top echelons of the legal profession institutionalise a culture which allows short shifts in Constitutional law, it legitimises a broader culture of impunity one way or another, Prof Mehta says.

Prof Mehta adds that senior legal counsels create a disproportional effect on influencing a legal culture, more than even judges sometimes.

If the Supreme Court is the culprit and the legal fraternity doesn't up - when the legal profession does not display in public a commitment to basic Constitutional law - that damages the rule of law more than an erroneous judgement: Prof Mehta

Prof Mehta also comments that Pakistan's legal profession was much more active in combatting an executive overreach than the mightiest legal profession in the world - the Indian legal profession.

Panelists answer question from @pallavibnb on the contempt jurisdiction.

Arvind Datar notes that the Supreme Court has not been consistent in the exercise of its contempt jurisdiction.

Datar notes that in the case against Arundhati Roy, it was not right to invoke contempt against her.

The use of contempt jurisdiction in such cases is counterproductive, Datar opines.

He adds that ideally, the Court should introspect why it is being criticised.

Q: Do you think the exercise of PIL jurisdiction sometimes leads to the substitution of the judges' opinions, not backed by any substance?

Datar: Yes it does.

Very often, it depends on who is the portfolio judge for a particular matter. A lot depends on individual perception.

Q: Who Governs? Government, Parliament of Judges?

Lord Goldsmith: The correct legal answer is all of them in different capacities.

But that doesn't tell the whole story of what the political reality is.

Lord Goldsmith: In our system, the Parliament can overrule whatever the other says.

The Courts will continue to hold the Government to account and aid the Parliament to hold the executive to account.

If they all work together, only then will we have a fair system, he adds.

Datar: Life is not perfect, there is bound to be overlap.

By and large, if the executive sticks to implementing the law, parliament enacts laws properly, and judges stick to their adjudicatory functions - it would be wonderful

However, Datar adds, it ultimately depends on leaders

If the leaders reach the stage of statesmanship, there will be a true separation of powers, he opines

Senior Advocate Gaurav Pachnanda: Who ultimately governs may depend on who is not governing.

We have conferred these powers on three different organs.

However, in a changing polity, there will be situations where one will do more. There could be concerns of overreach.

The answer to the question of who governs is, therefore, a question of who does not govern: Pachnanda

Webinar ends.