New Delhi: Amidst Union law minister Kiren Rijiju’s continued criticism of the collegium system, the Supreme Court on Monday suggested that the government is perhaps holding back some appointments because it is “not happy” that the top court struck down the National Judicial Appointments Commission.
A Supreme Court bench of S.K. Kaul and Abhay S. Oka also objected to Rijiju’s remarks that the government is not sitting on files recommending the appointment or transfer of judges. “Never say that the government is sitting on the files. Then don’t send the files to the government, you appoint yourself, you run the show then,” Rijiju had said at a Times Now summit.
According to LiveLaw, Justice Kaul said on Monday, “When someone high enough says that..it should not have happened… Mr [attorney general] I have ignored all press reports, but this has come from somebody high enough also. With an interview… I am not saying anything else…”
The judge, who is junior only to the Chief Justice of India (CJI) in seniority, asked AG R. Venkataramani to “resolve” the issue, according to Bar and Bench, adding, “Don’t make us take a judicial decision [to ensure that files are cleared].”
Over the past few months, Rijiju has taken repeated swipes at the collegium system. Among the criticisms he has made is that judges are focusing more on their administrative duties rather than judicial ones. He also claimed that because of the system, judges are appointing only those people who they know and not necessarily those who merit being appointed.
Speaking at the Times Now summit on November 25, he said the collegium system is “alien” to the Indian constitution. “You tell me under which provision the collegium system has been prescribed,” he asked.
“Anything which is alien to the Constitution merely because of the decision taken by the courts or some judges, how do you expect that the decision will be backed by the country,” he asked.
He added that once the Supreme Court or a high court collegium sends in a recommendation, the government has to do due diligence.
‘Frustrates the entire system’
On Monday, the bench of Justices Kaul and Oka was hearing a contempt petition filed by the Advocates Association Bengaluru in 2021 against the Union government for not approving 11 names reiterated by the Supreme Court collegium. The petition, according to LiveLaw, contended that the government’s conduct is in “gross violation” of the top court’s directions that names reiterated by the Collegium must be cleared within 3-4 weeks.
Justice Kaul wondered if the recommendations were being withheld because the government is unhappy that the NJAC, which was established by the Narendra Modi government to replace the collegium system, was struck down by the top court.
“The issue is, names are not being cleared. How does the system work? We have expressed our anguish…It appears that the government is not happy that the NJAC has not passed the muster. Can that be the reason to not clear the names?” he asked, according to LiveLaw.
The judge added that withholding the recommendations often “frustrates the entire system”, saying that many “competent lawyers and judges” are uncertain about accepting judgeship because of the uncertainty caused by the Union government’s decisions to withhold or sit on recommendations.
Justice Kaul said:
“When we persuade youngsters to accept judgeship, their concern is what is the guarantee the appointments take place in time…Timelines have to be adhered to. Many recommendations have crossed the 4 month limit. No information to us…One lawyer whose name was recommended has unfortunately passed away. Another has withdrawn consent. Please resolve the issue… I am troubled by the fact that first generation lawyers, who are competent and have come from law schools, are declining judgeship due to this reason.”
Justice Kaul also criticised the Union government’s practice of cherrypicking recommendations. He said:
“Sometimes when you appoint, you pick up some names from the list and not others. What you do is you effectively disrupt the seniority. When the Supreme Court collegium makes the recommendation, many factors are kept in mind.”
Seemingly responding to Rijiju’s claim that the government cannot be expected to sign off on any name put forward by the collegium, Justice Kaul said that the inputs provided by the Intelligence Bureau and the government are considered by the Supreme Court collegium before it forwards a recommendation. “Once it is reiterated, that is the end of the matter, as the law stands now,” he said.
According to Bar and Bench, the judges said that the government can convey its objections to the recommendations made by Collegium and cannot hold back names without conveying any reservations.
“You cannot hold the names back without stating your reservations. I did not comment on the High Court names since 4 months had not elapsed, but these names are pending since 1.5 years. You are frustrating the method of appointment. We only issued notice to find out problem,” the bench said.
The court adjourned the matter for hearing on December 8 after AG Venkataramani and solicitor general Tushar Mehta assured the court that they will look into the matter.
Justice Sanjay Kishan Kaul. Photo: YouTube
‘Collegium system is alien’
Rijiju said on November 25 that the current mechanism to appoint Supreme Court and high court judges is “alien” to the constitution.
The Supreme Court in its wisdom, through a court ruling, created the collegium, he said, noting that before 1991 all judges were appointed by the government.
Rijiju said as long as the collegium system is prevailing, he has to respect the system. “But if you expect [the government] should merely sign [off on] the name to be appointed as a judge just because it is recommended by the collegium, what is the role of government then? What does the word due diligence mean,” he said.
He said there are loopholes in the collegium system and “people are raising voices” that the system is not transparent. “Also there is no accountability,” he said.
The law minister said the government cannot be accused of sitting on files. “Then don’t send the files to the government. You appoint yourself and you run the show … system does not function. The Executive and the Judiciary will have to work together,” he said.
Before describing the collegium system as alien to the constitution, Rijiju said every judge is not right. “But every judgment is correct and right because it is a judicial pronouncement. In a democratic process, nobody can disrespect the judiciary and nobody can disobey a court order,” he said.
‘No system perfect’, CJI had said
Speaking at a Constitution Day event organised by the Supreme Court Bar Association (SCBA), also on November 25, CJI D.Y. Chandrachud said that no institution in a constitutional democracy – including the collegium – is perfect and the solution lay in working within the existing system.
After speaking about judges being faithful soldiers who implement the constitution, he touched upon the criticism of the collegium.
“Finally, criticism about the collegium. I thought I will reserve the best for the last. No institution in a constitutional democracy is perfect. But we work within the existing framework of the constitution as it is interpreted and given to us. All the judges of the collegium including me, we are faithful soldiers who implement the constitution. When we talk of imperfections, our solution is to work our way within the existing system.”
“The president (of the SCBA) raised a query about good people. Getting good people to enter the judiciary, getting good lawyers to enter the judiciary is not just the function about reforming the collegium. Getting to be judges is not a function of how much salary you give judges. However high you pay judges, it’ll be a fraction of what a successful lawyer makes at the end of one day,” the CJI said, adding people become judges for a sense of commitment to public services.