When Justice Kabir asked what was the public interest in the case, Prashant Bhushan, counsel for the petitioner explained that independence of the judiciary, according to the Advocates-on-Record judgment, required that there should be no interference from the executive in the matter of appointment of Judges. If that is so, how could a sitting Judge accept the help of the Government in actively canvassing support in the international fora for his judgeship in the ICJ was the question posed by Bhushan.
When Justice Kabir did not agree with this argument, Prashant Bhushan said he realised that it was too late in the day to challenge Justice Bhandari’s nomination, as the ICJ election was scheduled to take place the next day. Therefore, he said he was keen on the second prayer of the petition, which wanted the court to lay down the norms for the future. When Justice Kabir suggested that he should then move a proper petition for the same, Bhushan insisted it was indeed a proper petition for that purpose. If he moved a proper petition later, then the Court might say it was just an academic question; therefore, it was the right moment to examine this issue. Bhushan further suggested that the Court could adjourn the matter, rather than dismiss it. At this point, it appeared as if Justice Kabir was favourably inclined to consider it.
However, Justice Kabir made up his mind to dismiss it, when the Attorney-General Vahanvati reminded the Bench what signals it (the admission of the matter even for the future) would send to our efforts to elect Justice Bhandari the next day. Bhushan then offered to withdraw the petition, because its dismissal would close the option of its being heard again later.
justice bhandari should have resigned and tried his luck at icj. instead of that he continues to sit in SC while govt. lobbies for him. now if he loses, he comes back to SC and operates as a judge. the very concept of independence of the judiciary from the government (who is also the biggest litigant) has been completely subverted.
the result of the petition was a foregone conclusion as SC was naturally reluctant to hear a case against their own brother judge. such is the sorry state of affairs today.
anyway, this was certainly worth a fight.
Another concern that seems to have escaped the media's radar is Justice Bhandari's lack of experience or any demonstrated capacity in the field of public international law. While it might be too late to raise objections, it is difficult to conceive how he will keep up with his colleagues at the ICJ when it comes to deliberations on nuanced questions. If a position on the world court is being identified with national pride, India could have easily nominated established scholars such as Dr. V.S. Mani, Dr. P.S. Rao or Dr. B.S. Chimni among others. I am afraid that a six year term for Justice Bhandari is going to paint a highly inaccurate picture about the state of international law scholarship in our country.