E-Paper
Collegium system law of the land, comments against it not well taken: Supreme Court
The court’s observations come a day after Vice President Jagdeep Dhankar commented on the system of selecting judges for constitutional courts, in the course of his opening address after assuming the office of Rajya Sabha chairperson on Wednesday
The Union government is bound to follow the collegium system “to a T” because that is the law of the land, the Supreme Court observed on Thursday, adding there will be a “breakdown” and an “infinite battle” if everyone starts choosing which law to follow – marking another chapter in the ongoing tussle between the executive and the judiciary over the judges’ selection mechanism.
Taking up a contempt plea against the Centre for delays in clearing names for judgeship, a bench, headed by justice Sanjay Kishan Kaul, pointed out the government is free to bring a new law to replace the collegium system, which may be put to the test of constitutionality if challenged. “But till the time the collegium system is there as the law of the land, it has to be enforced. Till this law is prevalent, it has to be followed to a T,” it stressed.
The bench, which also included justices AS Oka and Vikram Nath, stated: “The scheme of our Constitution requires the Supreme Court to be the final arbiter of law. The Parliament has the right to enact a law but the power to scrutinise it lies with this court. It is important that the law laid down by this court is followed else people would follow law which they think is correct.”
During the hearing, the top court took cognisance of statements made by certain “government functionaries” criticising the collegium system, and asked attorney general R Venkataramani to “advise them” to “exercise control”.
“It’s not very good making comments on the Supreme Court and collegium...and all that is not very well taken. You have to advise them to exercise control,” said the bench, asking the AG to advise the government suitably about the “correct legal position” as it exists, and “to ensure that the said legal principles are followed” in matters of judicial appointments.
The court’s observations come a day after Vice President Jagdeep Dhankar commented on the system of selecting judges for constitutional courts, in the course of his opening address after assuming the office of Rajya Sabha chairperson on Wednesday. Dhankhar said the Supreme Court’s 2015 judgment striking down the National Judicial Appointments Commission (NJAC) Act was a “glaring instance” of “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”.
Over the last two months, Union law minister Kiren Rijiju has been strongly criticising the collegium system, terming it “opaque”, “alien to the Constitution” and the only system in the world where judges appoint people who are known to them.
On Thursday, the court said: “We don’t go by what people feel or speak about the collegium system, rightly or wrongly, at the right place or the wrong place, but we will enforce what is the law of the land... Our job is to enforce the law as it stands today. If we can’t do that, we have no right to enforce the laws brought by you.”
It took note of pendency of certain names with the government for almost two years before they are sent back for a review by raising similar objections. “Same kind of objections, same kind of issues are raised even while sending back the names which have already been reiterated. How will this ping pong battle settle? There is an infinite battle going on,” the court rued.
Rejecting a suggestion by the Centre that a new Memorandum of Procedure (MoP) remains to be finalised since the Supreme Court is yet to respond to the government’s letter dated July 11, 2017, the bench held that the MoP stood finalised in March 2017 when the Chief Justice of India sent his final response to the government.
“It’s not just that the government will write a letter and the issue is reopened. There is an existing MoP and it has to be followed. You can ask for fine-tuning the MoP or some changes but, in the meantime, the collegium system coupled with the MoP must be followed,” it said.
While Venkataramani sought some more time to iron out issues relating to delays in appointment of judges, the court remarked: “If you want to bring a new law, please bring it. Nobody is stopping you from bringing a new law. But today, the collegium system is existing. If everyone starts deciding which law to follow, your many laws won’t be followed...Then why the court should enforce a law of yours which a section of the society opposes? We enforce a law because that’s the law of the land and it is our duty to enforce it,” added the bench, fixing the next hearing on January 6.
The court also took strong exception to the Centre returning recommendations that were already reiterated by the collegium following the rejection of the government’s objections regarding their candidature.
“You tell us under which law or provision you can send back the names already reiterated by the collegium? The Second Judges case (of 1993 which introduced the collegium system) and the Presidential Reference (of 1998 which led to documenting a memorandum of procedure to appoint judges) are clear that once reiterated, that’s the end of the matter and you must appoint them...you are clearly in breach of the judgments,” the bench told the AG, citing 10 names for HC judgeship returned by the government on November 25. It flagged that five of them were from the Allahabad high court whose names were first recommended three years ago.
Venkataramani pointed out that two such names have been dropped by the collegium in the past after the government returned them despite the reiteration. To this, the bench noted in its order it is not aware of the special circumstances under which the two names were dropped but it is certain that the collegium will henceforth keep the government’s thought process into account.
A note submitted by the AG in the court on Thursday also complained about ascribing all the blame to the government for delay in appointing judges, claiming high courts were yet to make recommendations for 56% of the existing vacancies (332) apart from 43 vacancies that are likely to arise in the next six months. Another reason cited by the government for massive vacancies in high courts related to the “high rate of rejection” of names by the Supreme Court collegium after they are sent by the high courts.
But the bench called the response a “blame game”. It observed: “What you are resorting to, sorry to say, is a blame game. Do you also want the collegium to clear all the names that come as you are saying there is high level of rejection? So, when you (government) do it, it’s scrutiny and when we do it, it’s rejection. If we have done a job carefully, then also you complain.”
About high courts not sending enough recommendations, the bench said it has acknowledged the problem and has been imploring the high court chief justices to make recommendations well in advance. “But at the same time, what troubles us is the delay in clearing names. People are sceptical of throwing their hats in the ring, putting their life on hold while there is no certainty when the government will clear their names,” it added.
The government’s note also talked about its July 2017 letter for making further improvements in the MoP after two judges in a judgment in the same year highlighted the need to revisit the assessment mechanism for selection of judges. According to the note, the MoP is yet to be finalised since there is no response from the Supreme Court.
But the court said the government cannot “latch on to” the views of the two judges in the seven-judge bench that delivered this judgment in 2017. “Observations of two judges in a matter can it upset the judgement of a five-judge bench. Is it permissible for the government to latch on to the observations made by two judges in a seven-judge bench to demand that the MoP needs to be revisited? The MoP issue is over with the finalisation by the collegium in Match 2017 and the response by the CJI,” it responded.
The court also asked Venkataramani to convey to the government its concerns regarding the seniority of the names recommended by the collegium. “When collegium clears the names, there are many factors in mind. You maintain a hierarchy as in how it should go. But if the hierarchy is disturbed, it disrupts the whole process. You please take up this issue as well,” it told the AG
The bench had last heard on November 28 the contempt plea by the Advocate Association, Bengaluru, filed through advocate Amit Pai. On that day, the bench had said that the government cannot “frustrate the entire system” just because it remains “unhappy” about its legislation on judicial appointments failing to pass the test of constitutionality. In 2015, the top court had struck down a Centre’s law to replace the collegium system with a new model of judicial appointments.
In 2014, the government passed the National Judicial Appointment Commission (NJAC) Act, setting up an alternative system for appointment of judges to constitutional courts. But in 2015, the Supreme Court ruled that the law was unconstitutional as it sought to tinker with the independence of the judiciary. The court’s pronouncement revived the collegium system – a method of judicial appointments evolved through three constitution bench judgments of the apex court between 1981 and 1998.
Based on these judgments, the MoP was framed in 1999 to guide the judicial appointments under which the government can only object once if it does not agree with the collegium’s recommendations, but is bound by the decision after the names are reiterated. The MoP, however, is silent on the time within which the appointments have to be notified by the government.
