SC objects to minister’s remarks on collegium

NEW DELHI: Disapproving of Union law minister Kiren Rijiju’s constant attack on the collegium system of appointing judges, the Supreme Court on Monda y asserted that the Centre is bound to “observe the law of the land” and 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 law to replace the collegium system with a new model of judicial appointments.

A bench, led by justice Sanjay Kishan Kaul, also implored attorney general R Venkataramani and solicitor general Tushar Mehta to ascertain that the “law of the land is observed” by the government and that the collegium’s recommendations pending for several months are expedited so that judicial orders do not have to be passed.

“It is crossing the Rubicon by keeping the names pending like this. The call has to be taken...It is frustrating the whole system because you hold back the names without saying what is your reservation. This is not acceptable...You are effectively frustrating the method of appointment,” the bench, which also comprised justice AS Oka, told the law officers while fixing December 8 as the next date of hearing.

About Rijiju’s comments, the court said it would not usually take cognisance of the statements published in the media but when somebody “high enough” like the law minister issues remarks about the collegium system and the judges, that cannot be ignored.

“I ignore press reports but what he (Rijiju) says; when somebody high enough says ‘let them do it themselves’, we will do it (make appointments) ourselves, if necessary. I am not saying anything else. If we have to, we will take a decision,” justice Kaul told the law officers, who were representing the Centre in a contempt plea moved against the government for withholding several names recommended for appointment as high court judges. The plea was filed by the Advocate Association, Bengaluru, through advocate Amit Pai.

At this point, Mehta said everything reported in the press may not be correct. But justice Kaul retorted: “It is not just anyone saying it. It’s from someone high enough. And it’s a reported TV interview. I cannot ignore...It should not have come.”

The court’s disapprobation came after senior advocate and the president of the Supreme Court Bar Association, Vikas Singh, referred to a comment by Rijiju at the Times Now Summit on November 26 when the law minister said that the collegium should make the appointments itself and “run the show” if their complaint is that the government has been sitting on files.

Singh pleaded the court to issue a contempt notice to Rijiju over his consistent criticism of the apex court’s model of selecting judges through the collegium system. At various instances during the past month, the law minister commented that the Supreme Court collegium appoints people who are known to the judges; called the collegium system “opaque” and “alien” to the Constitution; and described the Indian selection system as the only one where judges appoint judges.

To this, the bench replied: “How many statements do we take note of? Normally, we don’t taken note of the statements made in press. But the ground reality is that the names are not getting cleared. How does the system work? We have already expressed our anguish.”

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, a memorandum of procedure (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.

On Monday, the bench observed that the government appears unhappy that the NJAC did not pass the constitutional muster. “But that cannot be the reason not to comply with the law of the land. There are some laws by the government which are also upheld by this court. That can also make some other section unhappy. Can they now say we will not follow the law? Should such situations be countenanced?” it asked.

“Till this law stands, if the government says we will not adhere to the law of the land, tomorrow someone else will say they also not follow the law of the land. Look at the larger picture...Please, resolve this and don’t make us take a judicial decision in this regard,” the court told Venkataramani and Mehta.

Pointing out that the court through a 2021 judgment has laid down a timeline of 18 weeks for the Centre to process the names for appointments of the high court judges, the bench said that those timelines have gone “haywire” owing to the delays by the government by neither notifying the appointments nor sending back the names with their objections. “Timelines having been laid down, they have to be adhered to unless there are some exceptional circumstances,” it added.

The bench also flagged the issue of the judges’ seniority getting disturbed due to the sequence in which the government clears names.

“When you appoint, sometimes you pick up from one list some people. Then, some other people from the second list, which has come later. And then again you appoint some people from the first list. What happens is that you completely disturb the seniority. However, when the collegium recommends these names, it keeps many factors in mind because the seniority takes you further...the problem is that when you have the desire, you move in one day and when you don’t want it, you don’t do it for months. There has to be some reasonableness,” it remarked.

The court further pointed out that due to the “torturous process of appointment” and the “languishing of the names for months,” it is becoming extremely difficult to persuade competent and qualified lawyers to take up judgeships.

At this point, AG Venkataramani said that he was looking into the concerns of the court and would make endeavours to weed out the issue.

“I think both of you are both competent enough and senior enough to convey our sentiments to the government...With both of your persuasion skills, we hope that some progress is made by the next time you come before us,” the bench told the AG and the SG.

On November 11, the bench had sought the AG’s assistance in the matter, saying that the endless hold-up by the Centre in clearing names is “not acceptable”. The court had noted that some recommendations have remained pending with the Centre for at least a year -- the oldest of which dated back to September 2021. Besides, there were 10 other names pending with the government, which have been reiterated by the Supreme Court. The September 23-resolution of the collegium to elevate Bombay high court chief justice Dipankar Dutta as a judge of the Supreme Court also remains pending.

With Union law minister Rijiju in attendance at a function organised by the SCBA on November 25 to celebrate the Constitution Day, Chief Justice of India (CJI) Dhananjaya Y Chandrachud stressed the need for “constitutional statesmanship” between the Centre and the apex court, saying the two institutions cannot keep finding fault with each other in matters of judicial appointments.

Calling for “harmony” and “balance”, the CJI on that day underlined that the collegium does a lot of homework before names are sent to the government for notifying appointments, and therefore the two institutions need to work as constitutional statesman to finding just conclusions. “We can’t be constitutional statesmen if we are only at a point where we are finding fault with each other,” he had said.