Justice SK Kaul, a Supreme Court judge, expressed disapproval of Kiren Rijiju’s criticism on Friday of the top court’s observation that the government was sitting on files relating to the appointment of judges cleared by the Collegium.
Law Minister Rijiju commented at the Times Now Summit 2022, “Never say that the government is sitting on the files, then don’t send them to the government, you appoint yourself, you run the show…” During his remarks about the Collegium system as being “alien” to the Constitution, he had said, “You tell me under which provision it is prescribed.”
According to Monday’s news reports, Justice Kaul said, without naming the Union Law Minister, “Let them give the power.”. We have no difficulty… I ignored all press reports, but what he said, that when somebody of sufficient authority says let us do it ourselves, we will do it ourselves, no problem… It came from someone of considerable authority. This should not have been done. As far as I am concerned, this should not have happened.” He was sharing a bench with Justice AS Oka at the time.
Tushar Mehta, the solicitor general, urged the court not to rely on media reports, to which Justice Kaul replied, “It is an interview….an interview makes it difficult to deny what you have said yourself, and I am not intervening.” The Attorney General and Solicitor General are expected to serve as law officers… to advise the government regarding the application of the law of the land as laid out by this court.
Judge Kaul and Justice Oka were hearing a contempt complaint filed by the Advocates Association Bengaluru alleging that the government has not yet approved 11 names reaffirmed by the Supreme Court Collegium in violation of the top court’s guidelines.
What is the reason for the dispute between the government and the SC.
As a result of the high number of cases pending in all courts, the Supreme Court has been taking the government to task for delaying appointments approved by its Collegium. While the government points to the demands of due diligence, it also questions the Collegium system itself, calling it opaque and unconstitutional.
At an earlier hearing on November 11, the bench chaired by Justice Kaul noted that “keeping names pending is not acceptable”, and also issued a notice to the Secretary of Justice.
Taking up the matter on Monday, the bench asked whether the Centre had not cleared the names due to the National Judicial Appointments Commission’s (NJAC’s) failure. In the event that the names are not cleared, how will the system work? Our anguish has been expressed…It appears that the government is dissatisfied with the NJAC’s failure to meet the government’s expectations. Can that be the reason for not clearing names? Justice Kaul asked.
Even though everyone wants first-generation lawyers to become judges, the bench stated: “but what guarantee is there that our names will not languish for months together?” The quality of judicial appointments will decrease if this occurs. Justice Kaul stated that it is in no one’s interest.
As a result of a lawyer withdrawing consent to become a judge, Justice Kaul asked, “What is the message we are sending?” We are unable to understand it. It is the anguish that we are expressing. When he heard about the matter last time, we were hopeful that things would improve. I believe that we expressed our opinion in very soft terms.”
Justice Kaul responded to Attorney General Venkataramani’s statement that “we should not be taking a rhetorical standard as a guide” with, “We have kept our patience even today because the Attorney is appearing.”. Earlier in the matter, Mr K K Venugopal (former Attorney General) appeared before me… As the highest officer in this country, it is my duty to ensure that good people are appointed and that court orders are adhered to.”
The three-judge bench set out timelines for the government to follow when appointing judges to resolve problems, Justice Kaul explained, emphasizing that the timelines must be followed. In the absence of any exceptional circumstances, such as in one or two cases, the timelines that have been established must be adhered to. There should not be 20 cases pending during this period of time,” he stated.
It is essential to expedite without adding any other factors that may dilute the fairness of consideration and quality of the entire process. Accordingly, after receiving the order (November 11), As a result of discussions at the secretary level, I decided to go beyond that, and some facts were shared with me. However, I had a few questions, not as an AG but as an officer of the court, as we are all concerned about the quality of appointments to courts. Also, he stated that he would follow up on the matter.
Please be aware of the additional anxiety that needs to be addressed. When timelines are established and guidelines are defined broadly, we are mindful of the equations in such a (an) appointment process. Unfortunately, some of those timelines have gone awry. There have been aggravating circumstances since then. As such, we look forward to both of your persuasions with the government to ensure that some progress is made when you return.
He noted that appointment to the High Court is a “very important matter”. He said, “We have sent names in anticipation of vacancies…Last two months, the whole process has been stalled. Thus, regardless of whether it is an appointment to the highest court or an appointment to the position of Chief Justice… please resolve this… don’t let us take decisions on the judicial side,” Justice Kaul said.
The next hearing date was set for December 8, but Senior Advocate Vikas Singh, who represented the petitioners, requested a shorter hearing date. It was to this that Justice Kaul responded, “You think I am not bothered?”. There is a great deal of concern for me. “We have communicated our sentiments to both law officers.” Attorney General G Venkataramani stated, “I believe the trust placed in us by the court will be reciprocated, and the process will be more efficient.”
As far as I am concerned, I have no reason to doubt that. The work will be done, and you should ensure that at least some of the work is completed before… All I know is that senior members of the Bar holding the office of Attorney General and Solicitor General should be listened to by government officials. The two of you are competent and senior enough to convey our sentiments to the government,” Justice Kaul said.
In response to the Attorney General’s remarks that things need to move in a certain manner, Justice Kaul said, “Attorney, when things need to move, they move within a day.” They do not move for months when they do not need to move. That is the problem”. “It is both a matter of principle, policy, high consideration, as well as strategy.” Venkataramani explained.
During the hearing, Justice Kaul responded by saying, “Maybe you have reservations about the law… but until the law stands, it is the law of the land.”. Until it becomes the law of the land… If the government says it will delay or disregard the law of the land, someone else may say something similar about another part of the law tomorrow. The larger picture must be considered.”