Supreme Court takes exception to govt functionaries' statement on judicial appointments, NJAC

Satya Prakash

New Delhi, December 8

Taking exception to government functionaries’ statements against the Collegium and the quashing of the National Judicial Appointments Commission (NJAC), the Supreme Court on Thursday asked Attorney General R Venkataramani to advise the Centre on the issue.

Emphasising that the Collegium system was the law of the land that must be followed, a Bench of Justices SK Kaul, Abhay S Oka and Vikram Nath asked Venkataramani to advise the government on the correct legal position on the issue.

“Comments on the Supreme Court Collegium by government functionaries etc are not well taken… You have to advise them, Attorney General, to control their..,” Justice Vikram Nath said during hearing on a petition against the Centre sitting over the Collegium’s recommendations for judges’ appointment.

The top court’s comments came after Supreme Court Bar Association President Vikas Singh complained that statements were being made against the Supreme Court.

“Persons in constitutional posts are saying the Supreme Court does not have the power to exercise judicial review. That’s a part of the basic structure of the Constitution. It’s a little upsetting,” Singh told the Bench.

“Tomorrow people will say basic structure is also not a part of the Constitution,” Justice Kaul commented in response to Singh’s oblique reference to the Vice President’s statement on the Supreme Court’s 2015 verdict declaring the 99th Constitutional Amendment and the NJAC unconstitutional.

Vice-President Dhankar had recently raised questions over quashing of the NJAC Act and the 99th constitutional amendment and wondered if a constitutional amendment unanimously passed by Parliament reflecting the will of the people could be undone by the Supreme Court. Noting that Article 145(3) said interpretation of the Constitution could be done when a substantial question of law was involved, he had said nowhere it suggested a provision could be run down.

Earlier, Law Minister Kiren Rijiju had said that the Collegium could itself issue notification for judges’ appointment if it thought the government was sitting over its recommendations. Taking exception to Rijiju’s r statement, the top court earlier asked the Attorney General to ensure that the law of the land was followed.

On Thursday, the top court said, “The scheme of our Constitution requires the Supreme Court to be the final arbiter of law. Parliament has the right to enact a law but the power to scrutinize it lies with the court. It’s important that the law laid down by this court is followed, else people would follow the law which they think is correct.”

“Nineteen names were sent back (by the Government). How will this ping-pong battle settle?” it asked the Attorney General.

Noting that he has asked “critical questions” with those dealing with the issue in the government, the Attorney General told the Bench that “a little flexibility may be warranted and the court need not close that…”

The Bench – which was hearing a petition filed by the Advocates’ Association Bengaluru alleging “wilful disobedience” of the time frame laid down to facilitate timely appointment of judges in its April 20, 2021 order—posted the matter for further hearing next week after Venkataramani assured further consultation with the government to resolve the impasse.

As Venkataramani pointed out that there were two instances when the Collegium itself dropped the reiterated names were sent back by the Centre creating a perception that the reiterations might not be conclusive, the Bench termed them as  “isolated instances” which will not give the Government a “license” to ignore the Constitution Bench verdict which said Collegium reiterations were binding.

The Bench also emphasised that when recommendations were made by the Supreme Court Collegium, the aspect of seniority had to be maintained and the government must look into this aspect.

The Attorney General assured that he would look into it. “We expect the AG to play the role of the senior most law officer,” it noted.

Maintaining that the law on judicial appointments has been settled by the 2015 Constitution Bench verdict which quashed the NJAC and upheld the Collegium system, the Bench said, “You (Centre) have conveniently picked up some views of the judges and included that. How can that be done? You may want some changes but in the meantime Collegium along with existing Memorandum of Procedure has to work. Now it looks just like a blame game.”

It said due to certain comments made by two judges who were part of a seven-judge Bench judgment in 2017, the Government wanted certain changes in the Memorandum of Procedure for appointment of judges.

“The Centre might have sent communications seeking a change.. but those letters will not unsettle the MoP. It’s for the Collegium to take a call. The Government can have a view but that would not change the legal position,” the Bench said.

“Names are not being cleared. How can the system work? … We have expressed our anguish. It appears that the government is unhappy that the NJAC did not pass constitutional muster… Can that be the reason not to clear the names for so long. If today, the government says it will not adhere to the law of the land then tomorrow someone will not adhere to another part. You must think of the larger picture Mr. Attorney,” it had told Venkataramani on November 28.

Regarding the government’s concern on high courts not recommending names for elevation six months in advance, the Bench said it would impress upon the high courts to do so.