New Delhi: The Supreme Court on 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 that,” said a bench of Justices Sanjay Kishan Kaul and AS Oka.
The Collegium consists of the Chief Justice of India and the four senior-most judges who decide the appointment of judges to the High Courts and the apex court.
On Monday, the court cautioned the government against passing judicial orders to approve the recommendations made by the collegium.
In the same hearing, the bench reminded the Center that the existing law in the country for appointment of judges to the high courts and apex courts was through the collegium system. However, it was being violated by the former, the court said.
The judges further said that they were being “patient” with the apparent defiance of the government and even some comments made by the “high-up”, referring to the law minister’s statement a day earlier.
“The government seems unhappy that the NJAC (National Judicial Appointments Commission) does not have constitutional powers. This cannot be a reason for not following the law of the land.
Speaking at the Times Now summit, Rijiju had reacted sharply to the notion that the Center was sitting on the recommendations made by the collegium. The minister said that there are flaws in the collegium.
Rijuju had said, ‘Don’t say we are sitting on files, but if you want to say so, then appoint judges and run the show on your own.’
Senior Advocate and President of Supreme Court Bar Association (SCBA) Vikas Singh drew the attention of the bench to the minister’s remarks and urged for issuance of contempt notice.
It was on Singh’s mention that the court took note of the 2021 contempt petition filed against the Center for not approving the names reiterated by the apex court collegium. These names were cleared by the apex appointment body despite objections from the Centre. As per the Memorandum of Procedure (MoP), the government is bound to notify them.
Singh told the bench, the Law Minister is saying that let the Supreme Court issue the notification (for the appointment). To this, Justice Kaul said, ‘Let them (government) give us power.’
Turning to Venkataramani, Justice Kaul said: “We have ignored all the press reports, but this one has come from someone higher, it should not have been done. If we have to (take a decision), we will take one.”
Venkataramani and Solicitor General Tushar Mehta, who also appeared for the Centre, attempted to explain that the media reports were misquoted, the bench replied by saying that the statement was made during an “interview”, and therefore , “It was hard to deny “What You Said”.
‘Government cannot sit on names’
The bench also said that many people may have objections regarding the (appointment) law, but as long as it stands, it is the law of the land. It wished the two law officers to play a constructive role and advised the government to ensure that the “law of the land as laid down by this court” is followed.
Justice Kaul told both Venkataramani and Mehta to “make sure that some part of the work is done”. “They are holding high positions, the government should listen to them, they are competent and senior to convey our sentiments to the government,” the judges said.
The judges also took note of the fact that in the past the government has gone in “one day” and approved the names. The reference was to fast-track clearances granted in the past to some names by the top court as well as some HCs.
He said, ‘Once the name is repeated…to have such a name is to cross the Rubicon. What happens is that you completely barter the seniority, the collegium takes into account all that,” the judge said, adding that the government cannot be “encouraged” to delay appointments as it would set a wrong precedent, Will give ideas to the public at large to violate the law.
“The fact that the NJAC did not have a constitutional mandate cannot be a reason for not following the law of the land. Let us see its consequences. Sometimes, a law passed by you (government) is upheld by the SC. is kept. There may be a section of society which will be unhappy. Can that section (of society) say that we will not follow the law,” asked Justice Kaul.
The bench insisted that the government cannot sit on the names and has only two options – either notify the appointments or send them back with objections for reconsideration. And, if the name is repeated, the government has to finalize the appointment.
The bench regretted that the unexplained delay in clearing the names was the primary reason for “good advocates” not opting for the judiciary. Both the judges told the law officers that it was becoming difficult to persuade lawyers to join the bench and this could bring down the “quality” of judicial appointments, which was “not in anyone’s interest”.
Justice Kaul referred to a 2020 judgment which laid down timelines for approving appointments. One of them gave four months to the government before the candidates recommended by the high court collegium are sent to the apex court collegium for final approval. This scrutiny involves gathering information about the background of the candidate.
However, the ground reality is that the names are not being cleared, the judges told the counsel. According to the bench, 68 names sent by various high courts were lying with the government, some of them for more than four months. “It is disappointing to see some names being withdrawn without any reservation,” the bench said.