As the Supreme Court asserted on Thursday, despite criticism of the Collegium system of appointing judges, it is the “final arbiter” of the law under the Constitution. Under that scheme, the government has to select all the names reiterated by the Collegium.
Attorney General R Venkataramani was asked to tell Union ministers who criticize the Collegium system for controlling themselves by a three-judge bench.
Vikram Nath, a member of the bench, hearing a plea by the Advocates Association Bengaluru, said, “You must advise them to exercise some control.” He asked the government to be held in contempt of court for not approving names reiterated by the SC Collegium within the deadline.
The Supreme Court Bar Association president, senior advocate Vikas Singh, said, “people in constitutional positions were saying the SC doesn’t have the power to exercise judicial review”. Justice Kaul said, “people are going to say tomorrow that basic structure isn’t in the Constitution.”
The bench didn’t take names, but the remarks come close to Jagdeep Dhankar’s criticisms of the Supreme Court for its 2015 decision to strike down the law appointing judges to the National Judicial Appointments Commission (NJAC).
During Thursday’s hearing, the bench, including Justice A S Oka, emphasized that courts are the final arbiters of the law. “Our Constitution says the court should be the final judge on the law. Parliament enacts laws. Courts will review that, though. We have to follow the law as laid down by this court. Other sections…may decide to follow their course despite the law.” Justice Kaul said.
Asserting that the Collegium system is the law, he said, “Parliament passed NJAC law, but it didn’t meet Constitutional requirements.” That’s the thinking today. As long as the law doesn’t take hold, it has to be followed to the letter.”
It’s giving the impression that the government will appoint only palatable names, Justice Kaul said, expressing displeasure over the government’s repeated words for judges’ appointments.
The Collegium has dropped many proposals. He said the average clearance rate is about 50 per cent. The government’s view is taken into account. We can’t say that after taking the government’s perspective and the court’s clearance, it’s blocked without some facts coming to light, for which the government sends back the recommendation in a system like this. They’re allowed to do that. However, once reiterated, the Constitution bench provided no passage.”
“You’re sending names twice, thrice, how many times?” he said. You won’t appoint a person if you don’t like the name, contrary to the court’s judgment.”
Also in the order was a “suggestion” for the Collegium. Justice Kaul is on the Collegium.
The bench questioned Attorney General Venkataramani about the government returning nine of 11 recommendations to the Collegium for the first time and nine more times.
Judges said they’d asked the A-G how “reiterated names” are handled and that “sending back the name a second time would be in violation of this directive”.
The court said Venkataramani’s response “seems to suggest that in two cases earlier, in such a scenario, the Collegium dropped their recommendations, which may have led the government to think such reiterated names could also be returned”. “We aren’t sure why these names were dropped, but we are sure the Collegium will keep this in mind” in the future.
“The Collegium will now address that issue (of the returned files),” said the bench.