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‘If you want us to appoint judges, we will,’ SC objects to law minister’s remarks on collegium

At a summit Sunday, Law Minister Kiren Rijiju said there were loopholes in the collegium system that appoints judges to the top court and the country’s HCs.

Supreme Court of India | ANI file photo
Supreme Court of India | ANI file photo

New Delhi: The Supreme Court Monday did not “appreciate” Union Minister Kiren Rijiju’s statement that the collegium can “appoint judges on its own and run the show”.

“Let them give us the power and we will do it,” said a bench of Justices Sanjay Kishan Kaul and A.S. Oka.

The collegium comprises the Chief Justice of India and four senior-most justices who decide the appointment of judges to the high courts and the top court.

On Monday, the court also cautioned the government against passing judicial orders to ensure recommendations made by the collegium were cleared.

In the same hearing, the bench reminded the Centre that the existing law of the land to appoint judges in high courts and the apex court was through the collegium system. However, this was being flouted by the former, the court said.

The judges further said they were being “patient” to the apparent defiance by the government and even to some remarks made by “high-ups,” referring to the law minister’s day-old statement.

“There appears to be unhappiness of the government over the fact that NJAC (National Judicial Appointments Commission) did not muster a constitutional mandate. That cannot be the reason not to comply with the law of the land,” the bench told Attorney General R. Venkataramani.

Speaking at the Times Now summit, Rijiju had sharply responded to the impression that the Centre was sitting over recommendations made by the collegium. The minister maintained there were loopholes in the collegium.

“Thus, don’t say we are sitting on the files, but if you want to say so, then appoint judges on your own and run the show then,” Rijuju had said.

Senior advocate and Supreme Court Bar Association (SCBA) President Vikas Singh drew the bench’s attention to the minister’s remarks and urged it to issue a contempt notice.

It was on Singh’s mention that the court took note of a 2021 contempt petition filed against the Centre for not approving names of those reiterated by the top court collegium. These names were cleared by the top appointment body, despite the Centre’s objections. As per the Memorandum of Procedure (MoP), the government is bound to notify them.

“The law minister is saying that let SC issue notification (for appointment),” Singh told the bench. At this, Justice Kaul said: “Let them (government) give us the power.”

Turning to Venkataramani, Justice Kaul added: “We have ignored all press reports, but this has come from somebody high enough, it should not have. If we have to (make a decision), we will take one.”

As Venkataramani and solicitor general Tushar Mehta, also appearing for the Centre, attempted to explain, insinuating media reports were erroneous, the bench responded by saying that the statement was made during an “interview”, and, therefore, it was “difficult to deny what you have said”.


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‘Government cannot sit over names’

The bench also said that many may have reservations about the (appointment) law, but till it stands, it is the law of the land. It wished the two law officers to play a constructive role and advise the government to ensure that the “law of the land as laid down by this court” is observed.

“Make sure some part of work is done,” Justice Kaul told both Venkataramani and Mehta, fixing 8 December to hear the matter again. “They hold high offices, the government should listen to them, they are competent and senior enough to convey our sentiments to the government,” the judges observed.

The judges also made note of the fact that the government has in the past moved in “a day” and cleared names. The reference was to fast-track approvals given in the past to some names cleared for the top court as well as some HCs.

“Once the names have been reiterated… It is crossing rubicons by keeping names like this. What happens is you completely disturb the seniority, collegium considers all this,” the judge said, adding, the government cannot be “encouraged” to delay appointments because it would set a wrong example, giving ideas to the public at large to violate the law.

“The fact that NJAC did not muster a constitutional mandate cannot be a reason not to comply with the law of the land. Let’s see the consequences of this. Sometimes, some law by you (government), is upheld by SC. There may be a section of the society that would be unhappy. Can that section (of the society) say we would not follow the law,” Justice Kaul asked.

The bench asserted that the government cannot sit over names and has only two options — either to notify the appointments or send it back with objections for reconsideration. And, if the name is reiterated, the government has to finalise the appointment.

The bench regretted that the unexplained delay in clearing names was the primary reason for “good advocates” not to opt for judgeship. Both judges told the law officers it was becoming difficult to convince lawyers to join the Bench and that could bring down the “quality” of judicial appointments, which is “in nobody’s interest”.

Justice Kaul referred to a 2020 judgement that had fixed timelines to clear appointments. One of them gave four months to the government to complete scrutiny of candidates that are suggested by the collegium of the HC, before it is sent to the top court collegium for the latter’s final approval. This scrutiny includes collecting information regarding the candidate’s background.

However, the ground reality is that names are not being cleared, the judges told the attorney. According to the bench, 68 names sent by various high courts were lying with the government, some of them for more than four months now. “To hold back some names, without reservation, frustrates,” the bench said.


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