New Delhi: Unfazed by the recent criticism over striking down the National Judicial Appointments Commission (NJAC), the Supreme Court Thursday asserted it was the final “arbiter of law” passed by Parliament.
A three-judge bench led by Justice Sanjay Kishan Kaul also said that the collegium system, coupled with the existing Memorandum of Procedure (MoP), is the law of the land on the appointment of judges.
“Scheme of our Constitution requires our court to be the final arbiter of law. Parliament has the right to enact a law but the power to scrutinise it lies with the court. It’s important that law laid down by this court is followed, else people would follow law which they think is correct,“ the bench said Thursday in an apparent reference to Vice-President Jagdeep Dhankhar’s statement on the NJAC in the Rajya Sabha.
The Supreme Court, which was perusing the central government’s report on its delay in processing names recommended by the court’s collegium system, was also miffed at the Centre for blaming high courts for delayed appointments.
The bench, which also comprised justices Abhay S. Oka and Vikram Nath, asked the government to explain how it had returned 10 files that the Supreme Court’s Collegium had re-recommended for appointment as judges to various high courts.
The bench was hearing two petitions related to the non-appointment of judges by the central government.
On 25 November, the government sent 19 files back to the collegium — the apex body for the appointment of judges — for reconsideration. Out of these, 10 were reiterated names.
In his maiden address as the Rajya Sabha chairman Wednesday, Dhankhar claimed that the “historic” NJAC Bill passed unanimously by Parliament was undone by the Supreme Court.
In a speech that indicates hardening battle lines between the executive and the judiciary over the contentious issue of judicial appointments, Dhankhar called the Supreme Court’s 2015 judgement striking down the NJAC a “severe compromise of parliamentary sovereignty and the mandate of the people”.
Introduced as an alternative to the decades-old collegium system, NJAC was held invalid by a constitution bench of the Supreme Court.
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‘Comments on collegium will not be taken well’
On Thursday, the Supreme Court said that according to the Memorandum of Procedure (MoP), the central government has to notify the reiterated names for appointments.
MoP is a set of guidelines to make judicial appointments to the country’s higher judiciary.
The bench also rejected the government’s opinion that the Supreme Court is yet to respond to the former’s suggestion to modify the MoP, saying the exchange of views done between the two institutions between March 2016 and March 2017 was final.
In its hearing Thursday, the Supreme Court minced no words as it voiced its displeasure over Dhankhar’s words. Although it did not name him, the court told Attorney General R. Venkataramani to “advise them” (senior functionaries) against making such comments.
The same bench had previously voiced its reservations over Union Law Minister Kiren Rijiju’s statement that the collegium system was “opaque”.
“Let people not believe that they will follow a law which they believe is correct. This has larger ramifications. Comments on Supreme Court collegium by the government functionaries etc, is not well taken. You have to advise them, Attorney General,“ Justice Nath said.
Justice Kaul added: “Any law declared by this court is binding on all the stakeholders”.
The bench maintained the collegium system, which was evolved through two Supreme Court judgements in the past, is the “law of the land”, which should be “followed to the teeth”.
Just because few sections hold views against it doesn’t mean it ceases to exist, it added.
‘Can’t override 2015 verdict’
In its status report submitted Thursday and accessed by ThePrint, the government said that the remarks by two retired SC judges — Justices J. Chelameswar and Ranjan Gogoi — in 2017 had raised “serious questions about the selection process for judges” and “compelling need to make improvements”.
In its argument, the central government said that after the 2015 NJAC verdict, it had sent a revised MoP to the Chief Justice of India in March 2016. The SC’s collegium responded to it in May 2016 and then in July.
In August 2016, the central government had conveyed its views to the CJI, after which a final response was received from the top court in March 2017. It had once again taken up the MoP issue in July 2017 after the two judges highlighted the lack of an appropriate procedure for making an assessment before appointing someone as a judge to the high court, the government told the court.
The two judges were part of a seven-judge bench that heard a contempt petition against a sitting judge of the Calcutta High Court.
It was against this background that the court was requested to make alterations to the MoP, the government told the court, adding that it is still to hear back from it.
But the bench took a divergent view on the subject. “Once the collegium in its wisdom or as you would think in the lack of it had worked out the MoP, there is no up and down that is to take place,” it told the law officer.
The court also didn’t appreciate the central government’s stand that the Supreme Court, following the NJAC verdict of 2015, didn’t respond to its suggestion to revise the MoP.
The government’s attempt to re-agitate the debate following another judgement in July 2017 cannot be a ground for it not to follow the MoP in its existing form, it said.
It added that the central government cannot rely on the observation of two judges and override the five-judge bench pronouncement (on NJAC). “The MoP issue is over. Now is it logical to latch on to those observations of two judges when there is a Constitution Bench decision?” the bench asked.
Justice Kaul added that the government “may think of some alterations, but that does not take away from (the) existing legal process”.
(Edited by Uttara Ramaswamy)
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