New Delhi: The Supreme Court has once again reiterated that the collegium system is the law of the land and must be followed, observing that if people get to choose which law should be follwed and which should not be, there would be a breakdown.
In the lastest episode of the back and forth between the government and the top court over the present system to appoint and transfer judges to the Supreme Court and high courts, a bench headed by Justice S.K. Kaul said, “Just because there are some sections of the society who express a view against the collegium system, it will not cease to the law of the land.”
According to LiveLaw, the court told the government’s two top law officers – attorney general R. Venakataramani and solicitor general Tushar Mehta – in no uncertain terms that the constitution bench judgments which formulated the collegium system must be adhered to.
“There are sections in society who do not agree with the laws made by the Parliament. Should the court stop enforcing such laws on that ground?” the bench asked. “If every one is society decides which law to follow and which law to not follow, there would be a breakdown,” Justice Kaul said, according to LiveaLaw.
On Wednesday, vice president Jagdeep Dhankhar, during his maiden address to the Rajya Sabha, said that the Supreme Court compromised parliamentary sovereignty by scrapping the National Judicial Appointment Commission, which was established by the Modi government to replace the collegium. His comments came after the Supreme Court objected to comments made by law minister Kiren Rijiju over the collegium system.
“We expect the attorney general to play the role of the senior most law officer in advising the government of the legal position and in ensuring that the legal position is followed. The scheme of the constitution requires this court to be final arbiter of the law. The power to enact the law is with the Parliament, but it is subject to the scrutiny by this court. It is important that the law laid down by this court is followed or else people would follow law which they think is correct,” the bench said, while dictating the order.
Rajya Sabha chairman Jagdeep Dhankhar in the House on the first day of the Winter Session of Parliament, in New Delhi, December 7, 2022. Photo: Sansad TV Screengrab via PTI
‘Comments against collegium not well taken’
On Thursday, a three-judge bench – also comprising Justices Abhay S. Oka and Vikram Nath – continued to hear a contempt petition filed by the Advocates Association Bengaluru in 2021 against the Union government for not approving 11 names even after the collegium reiterated them.
According to LiveLaw, senior advocate Vikas Singh – who is the president of the Supreme Court Bar Association – referred to statements made Rijiju and Dhankhar about the collegium system during the hearing. “People in constitutional posts are saying [that the] Supreme Court does not have judicial review. That is basic structure. It is a little upsetting,” he said.
“Tomorrow people will say basic structure is also not a part of constitution!” Justice Kaul responded.
“Mr Singh is referring to speeches… which is not very good for… Making comments on the Supreme Court collegium is not very well taken. You have to advise them to control their….,” Justice Nath told the AG, according to LiveLaw.
During the hearing, the attorney general argued that there were two instances of the Supreme Court collegium dropping reiterated recommendations which were sent back by the Union government. This “gave rise to a perception that the reiterations might not be conclusive”, Venkataramani said, according to LiveLaw.
But the bench said that though there may be isolated instances where reiterated names were dropped, the government does not have a license to ignore the constitution bench judgment which said that collegium reiterations are binding. “When there is a judgment, there is no room for any other perception,” the bench said orally. According to LiveLaw, in the order, the bench observed that “it is not aware under what circumstances the collegium earlier dropped the two reiterated names”.
When the AG said that he has had discussions with the law ministry following the concerns raised by the bench during the last hearing and need more time to “fine tune” some issues, the court said he has to do better. “We need to find a way out. Why do you think we issued only a notice instead of a contempt notice? We want a solution.How do we sort out these issues? There is some kind of an infinite battle,” Justice Kaul said.
The bench also noted that the Union government had recently returned 19 names, including 10 which were reiterated by the collegium.
Watch | ‘Must Follow Collegium System Until Something Acceptable Replaces It’: Ex-CJI Lalit
‘Memorandum of procedure finalised, government must follow it’
According to LiveLaw, the bench also disapproved the Union government’s view in the status report filed by the AG that the Memorandum of Procedure (MoP) for appointing of judges needs to be reconsidered. While th report referred to observations made by former Supreme Court judges Ranjan Gogoi and J. Chelameswar that the MoP needed to be revisited, the bench said that the MoP has been finalised and the government cannot act as if there is no final MoP.
“You say Justices Ranjan Gogoi and Chelameshwar said that MoP needs a relook. but then so what.. even if two judges opine something.. How does it change the collegium decision? The system exists as on date. Two judges’ opinion does not become verdict of seven judges’ view. You 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 MoP has to work. Now it looks just like a blame game,” Justice Kaul said, according to LiveLaw.
