He remarked that conceding unlimited power to the government posed a huge challenge to constitutionalism and limited government. Justice Katju’s suggestion for government appointing new CJI in a week’s time or so only on merit, ignoring seniority, was amazing as the new bill seeking to set up a judicial appointments commission had not yet become law and even the new law did not give this right to the government. In view of Justice Katju’s earlier secular views, his conviction and faith in the impartiality, objectivity and fairness of the new government was intriguing, he pointed out.

Expressing his views on the application of federalism and the principle of separation of powers in India, Prof. Mustafa quoted that India is a federal state with subsidiary unitary features. He said that in a federal form of government states were not subordinated to the Centre, but had mutual relationship with the latter.

Regarding separation of powers between three branches of government he opined that no such separation of powers existed in India. He explained that bills were cleared by the cabinet and then sent to the legislature for enactment. Since the passage of the bill was ensured by the government of the party that commanded majority in the House, there was no separation of powers in true sense of the term.
 

Though the Supreme Court had ruled that the separation of powers was the basic feature of the Constitution, there was inconsistency in the rulings of the apex court. This was due to the constitution of division benches which delivered different judgments at different times in the cases of same nature. This, he said, was due to the non-existence of the system of the constitution of full court.

Tracing the history of federalism, Prof. Mustafa observed that if Congress had accepted the proposals of the Cabinet Mission Plan, creation of Pakistan would have been avoided and India would have adopted a federal Constitution with a true power-sharing formula between the Centre and states.

He believed that the Constitution provided for a parliamentary democracy and in such a system there was majoritarnanism and it was the majority will that prevailed. Referring to the power of judicial review of the laws passed by Parliament and assented to by the President, he said that they could be declared ultra vires of the Constitution by the Supreme Court and the high courts.
 

He held that the independence and impartiality of judiciary were not private rights of judges. They were the rights of citizens. Ultimately, judicial legitimacy (and power) rested on public confidence in courts, in the judges themselves and in their decisions. He opined that the independence of judiciary was the most cherished goal of any legal system and the process of appointment of judges was rightly seen as a crucial mechanism to achieve this goal. Judges must be independent of executive, senior judges and their own ideology. Even in mature democracies, there was a widespread public concern that judges had been appointed through cronyism and secret soundings, he remarked.

He pointed out that India’s past experience of government appointing CJI on merit had not been emulative. It was an open secret that in the past, with government help, several pliant and submissive judges did make it to the highest court. He held that nothing impacted the outcome of cases more than the constitution of benches. In a democratic society, it was no longer acceptable for judicial appointments to be in the hands of the executive.

Government was the biggest litigator in our country and their say in judicial appointments was a cause for concern and did give birth to many apprehensions, he said. He held that the appointment system must be, and must be seen to be, independent of the government. It must be transparent; it must be accountable. He emphasised that the fundamental principle in appointing judges must be selection on merit adding that it was dangerous to believe that the government would always correctly and fairly decide on merit.
 

He pleaded that seniority should remain the sole yardstick for elevation of a judge as chief justice. He, however, listed the names of several judges who had merit, but were brought to the Supreme Court not on the basis of merit. They were appointed as judges of the highest court on extraneous considerations.

Commenting on a “committed judiciary”, Prof. Mustafa said that it was a distinct possibility. He held that a judge must remain committed to the Constitution as it was supreme unlike Britain where the supremacy of Parliament was the first principle of British law. With the assertion of a particular ideology by the RSS and other leaders and complete silence from the otherwise vocal Prime Minister on these outbursts, the new dispensation in judicial appointments posed dangers to the seniority norm. In order to maintain judicial independence, he suggested that the last pay drawn by a retired judge should be treated as pension.

On the Right to Food Act, he said that it did not give entitlement to the beneficiary.

Earlier, Prof. Afzal Wani, Professor of law, Guru Gobind Singh Indraprastha University, spoke on Prof. Mustafa’s contribution to the teaching of law. Prof. Manzoor Ahmed, Vice-Chancellor of Vivekanand Subharti University, Meerut in his presidential address eulogised Prof. Faizan’s erudition and observed that it was a pleasure to hear his lecture.
 

Besides the office-bearers and members of the governing council and the general assembly of the IOS a fairly good number of intellectuals, university teachers, scholars, journalists and social activists attended the programme. Notable among them were Prof. Refaqat Ali Khan and Prof. ZM Khan, Vice-Chairman and the Secretary-General of the IOS respectively, Prof. Ishtiyaque Danish, Maj. Dr. Zahid Hussain from Chennai, Prof. P Koya and Prof. KM Mohammed from Calicut, Prof. Prof. MA Quddus, Dr. Md. Imteyaz Hasan, Dr. Shoukat Ali and Prof. Khalid Mirza from Patna, Prof. M.G. Hussain, Prof. Hasina Hashia and Prof. Eqbal Hussain, from Jamia Millia Islamia, New Delhi, Prof. Moinuddin Khan and Prof. Shakeel Ahmad from Pune, Mr. Abdul Basit Ismail from Kolkata, Mr. AQ Akhtar, Mr. Shabbir A. Khan from Jaipur, Mr. Aga Sultan from Bangalore, Dr. Fakhruddin Mohamad and Mr. Sajjad Shahid from Hyderabad, Mr. Sanjay Rai and Maulana Ateeq Ahmad Bastavi from Lucknow, Mr. Mushtaqu Ahmad, Architect from Chennai, Prof. Shamim A. Ansari, Dr. Arshi Khan, Dr. Zafar Nomani, Dr. Md. Tarique and Prof. S. Jamaluddin from Aligarh, Dr. Nityanand Kalita and Mr. Shahabuddin from Assam, Mr. Mushtaq Ahmed, Advocate, Ms. Suman, Maulana Ameen Usmani, Dr. Ausaf Ahmad, Prof. Naushad Ali Azad, Dr. Shakeel A. Tamanna and Dr. Md. Aftab Alam from Delhi etc.