IN­DIA’S SUPREME COURT Rift May Spur Govt to Con­test Judges-Se­lect-Judges Sys­tem

Fiji Sun - - Asia News -

The up­heaval within the Supreme Court (SC) Col­legium, with four of its mem­bers pub­licly re­belling against the CJI, ap­pears to have trig­gered dis­cus­sions among gov­ern­ment and po­lit­i­cal cir­cles about the pos­si­bil­ity of a Pres­i­den­tial Ref­er­ence to the SC on whether rec­om­men­da­tions by the splin­tered body should be bind­ing. A day after the un­prece­dented press con­fer­ence by four se­nior SC judges — Jus­tices J Che­lameswar, Ran­jan Go­goi, Madan B Lokur and Kurien Joseph— with a notso-subtle po­lit­i­cal un­der­tone, po­lit­i­cal as well as le­gal cir­cles were de­bat­ing the pos­si­bil­ity of the gov­ern­ment using the tu­mult in the top court to seek clar­ity on whether the rec­om­men­da­tions of a badly di­vided Col­legium on ap­point­ment of judges of the Supreme Court and high courts is oblig­a­tory.

The Col­legium, a body com­pris­ing the Chief Jus­tice and four next se­nior-most judges of SC, has an exclusive say in the ap­point­ment of judges of the apex court and HCs.

The apex court is op­posed to the di­lu­tion of its “mo­nop­oly” on ap­point­ments and struck down the law unan­i­mously passed by Par­lia­ment dur­ing the Modi gov­ern­ment’s ten­ure to set up a Na­tional Ju­di­cial Ap­point­ments Com­mis­sion (NJAC) to broaden the process of re­cruit­ment of mem­bers of the higher ju­di­ciary. Gov­ern­ment sources feel that the mutiny by CJI’s four se­nior-most col­leagues against him raises the im­por­tant con­sti­tu­tional is­sue of the “sanc­tity” of such a Col­legium.

“The Col­legium sys­tem ap­pears to have be­come un­work­able,” said a source.

The re­volt came a day after all the four judges con­cerned signed min­utes of the meet­ing of the Col­legium that rec­om­mended to the gov­ern­ment to ap­point se­nior ad­vo­cate Indu Mal­ho­tra and Ut­tarak­hand HC chief jus­tice K M Joseph as judges of the SC.

If the gov­ern­ment de­cides to make such a ref­er­ence to the SC, it would be sent by the Pres­i­dent to the Chief Jus­tice of In­dia un­der Ar­ti­cle 143(1) of the Con­sti­tu­tion, which says - “If at any time it ap­pears to the Pres­i­dent that a ques­tion of law or fact has arisen, or is likely to arise, which is of such a na­ture and of such pub­lic im­por­tance that it is ex­pe­di­ent to ob­tain the opin­ion of the Supreme Court upon it, he may re­fer the ques­tion to that Court for con­sid­er­a­tion and the Court may, after such hear­ing as it thinks fit, re­port to the Pres­i­dent its opin­ion thereon.”

On the process for ap­point­ment of judges, which was partly taken over by the SC through a judge­ment in 1993, for­mer Pres­i­dent K R Narayanan on July 23, 1998 had sent a Ref­er­ence un­der Ar­ti­cle 143(1) rais­ing per­ceived doubts about the con­flict be­tween the SCpre­scribed mode for ap­point­ment of judges to the apex court and HCs and that man­dated un­der the Con­sti­tu­tion.

A 9-judge bench, which did not in­clude the then CJI, gave its opin­ion on the Pres­i­den­tial Ref­er­ence on Oc­to­ber 28, 1998, fur­ther for­ti­fy­ing the SC’s firm grip over the se­lec­tion of can­di­dates for ap­point­ment as judges to the con­sti­tu­tional courts and vir­tu­ally shut­ting the gov­ern­ment’s role in the judge se­lec­tion process.

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