Supreme Court on Monday expressed its anguish over Law Minister Kiren Rijiju's "alien system" comment on the collegium system and called out the government for delaying the appointment of judges in the higher judiciary. The top court said the people may have reservations about the collegium system, but it was the law of the land and the Centre needed to adhere to it.
Supreme Court reminded the Executive that its inaction on collegium proposals was not the way to express its alleged unhappiness just because the National Judicial Appointments Commission (NJAC) "did not pass muster".
Justice Sanjay Kishan Kaul advised Attorney General R Venkataramani and Solicitor General Tushar Mehta "to play the role of Law Officer" and "advise the govt to ensure that the law of the land is observed".
"I have ignored all press reports, but this has come from somebody high enough (in the government hierarchy) …" Justice Kaul said. "If someone high enough says let them appoint themselves that sends a wrong message…That should not have been said…but it's an interview and it would be difficult to deny what has been said," Justice Kaul said.
The top court's disapproval comes in the face of Rijiju's November 25 comment where he criticized the collegium system and called it "alien" that did not have the people's mandate. Speaking at the Times News Summit, Rijiju had said the government could not be expected to clear names in an automated fashion and the government's role was to do its "due diligence", he added.
"Never say that the government is sitting on the files…then don't send the files…you (SC collegium) appoint yourself, you run the show then. The system doesn't function (like that). The executive and the judiciary must work together and serve the country," Rijiju had said.
The latest flashpoint is a build-up between the Centre and the Supreme Court on delay in the appointment of judges to the higher judiciary.
Delay in appointment frustrates the system: SC to Centre
Supreme Court on Monday urged the Centre to clear pending recommendations of judges to the higher judiciary. Justice Sanjay Kishan Kaul, who is also on the collegium, said several names have been pending for 1.5 years now.
The top court was hearing a plea filed by the Advocates Association Bengaluru seeking contempt against Barun Mitra, secretary with the Law Ministry for not clearing the 11 names reiterated by the Supreme Court's collegium within the promised timeline. Justice Kaul lamented that delay in the appointment of judges "frustrates" the system.
Justice Kaul said it was difficult to persuade young lawyers to accept the invitation to switch from the bar to the bench. The lawyers are concerned over the guarantee of timely appointment if they accept. "Many recommendations have crossed the four-month limit. No information to us (from the Centre)…One lawyer whose name was recommended has unfortunately passed away... Another withdrew consent…," Justice Kaul added.
"Please resolve the issue and don't make us take a judicial decision in this regard," Justice Kaul urged the Centre. "I am troubled by the fact that competent first-generation lawyers are declining judgeship due to this reason," he added.
The bench explained that the collegium considered several factors while recommending candidates for the higher judiciary. Seniority is one major factor, the bench added.
"Sometimes when you (Centre) appoint, you pick up some names from the list and not others. What you do is you effectively disrupt the seniority...," Justice Kaul said.
Vacancies in the higher judiciary
At present, the Supreme Court is eight short of its sanctioned strength of 35 judges. In 2023, nine more judges will retire. The collegium in its September 26 meeting had recommended elevating Bombay High Court Chief Justice Dipankar Datta as a Supreme Court judge.
The Centre has been silent on the recommendation so far.
The high courts are 335 judges short of their full working strength. On November 11, the Supreme Court while issuing notice on the contempt plea said there are 11 cases pending with the government. "The oldest of them is of vintage 04.09.2021 as the date of dispatch and the last two on 13.09.2022. This implies that the Government neither appoints the persons nor communicates its reservation, if any, on the names," the bench had observed.
"Keeping names pending is not acceptable. We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened," the bench said in its order.
The Supreme Court Collegium comprising five senior-most judges is responsible for the appointment of judges in the top court. Three senior-most SC judges recommend the appointment and transfer of high court judges. Three senior-most High Court judges send recommendations to the Supreme Court collegium for the elevation of persons to the high courts.
The Supreme Court through its 1993 Second Judges case introduced the collegium system. The three judges' cases—First Judges Case (1981), Second Judges Case (1993) and Third Judges Case (1998)—have collectively developed, evolved, and upheld the process for appointment of judges in the higher judiciary and principle of judicial independence.
The Bharatiya Janata Party (BJP)-ruled Centre in 2014 passed an act which introduced the National Judicial Appointments Commission—a proposed body to deal with the recruitment, appointment and transfer of all judges, judicial officers, legal officers and legal employees.
The NJAC would have replaced the collegium system. However, the Supreme Court in 2015 by a 4:1 majority—in what has now come to be known as the Fourth Judges Case—upheld the collegium system and ruled the NJAC to be unconstitutional.
Ex-SC judge Jasti Chelameshar was the sole dissenter. In 2019, shortly after his retirement, ex-SC judge Kurian Joseph, who was also on the five-judge Constitution Bench, said he had come to regret striking down the NJAC. "I now regret being part of the NJAC judgment, after seeing things now," he had said.
In an informal interaction with the press, recently retired CJI UU Lalit said Law Minister Kiren Rijiju was entitled to his opinion, but the collegium system was "the best" and it had been proven effective.