Justice Nariman calls out Rijiju ‘diatribe’; sitting on SC names ‘deadly’ for democracy

The remarks come amid a standoff between the Government and the judiciary over the appointment of judges. Rijiju has repeatedly questioned the Collegium system even as Vice President Jagdeep Dhankhar raised the “basic structure” doctrine on the powers of the judiciary vis-a-vis the legislature, and called the striking down of the NJAC Act a “severe compromise” of Parliamentary sovereignty.

Speaking at Friday’s event organised by Mumbai University’s Department of Law, Nariman said, “We have heard a diatribe by the Law Minister against this process (appointment of judges). Let me assure the Law Minister that there are two very basic Constitutional fundamentals that you must know. One fundamental is that, unlike the USA, a minimum of five unelected judges are trusted with the interpretation of the Constitution… And once those five or more have interpreted that basic document, it is your bounden duty as an authority under Article 144 to follow that.”

He said, “As a citizen I may criticise, no problem, but never forget… you are an authority and as an authority, you are bound by the decision, right or wrong.”

Justice Nariman suggested that the Supreme Court should set up a Constitutional bench to “tie all loose ends” of the Memorandum of Procedure for appointment of judges and call it the “fifth judges case”. He said that once the name of a judge is recommended by a Collegium, the Government should respond within a fixed time of 30 days. “This sitting on names is very deadly against democracy in this country,” he said.

He said the Constitution bench should lay down that once the recommendation for a judge is reiterated by the Collegium, the appointment should be made within a fixed period, whatever period it may be.

“Ultimately, it is how a Constitution is worked, and if you do not have independent and fearless judges, say goodbye. There is nothing left. As a matter of fact, according to me, if finally, this bastion falls, or were to fall, we will enter the abyss of a new dark age, in which R K Laxman’s Common Man will ask himself only one question: if the salt has lost its savour, wherewith will shall it be salted?… It is important to remember that you may have forged for yourself an excellent Constitution, but if ultimately those who are the institutions under it malfunction, there is very little you can do,” he said.

Referring to Dhankhar’s comments on the “basic structure” doctrine, Justice Nariman said, “From 1980 till date, this extremely important weapon in the hands of the judiciary has been used a number of times as one of the extremely important checks and balances in our Constitution to check an executive when it acts beyond the Constitution.”

He said, “So let us remember when we speak about the basic structure doctrine, that it is a doctrine that has been used by minority judges first. It is a doctrine that was sought to be undone twice and that was sought to be done over 40 years ago. So let us be clear that this is something that has come to stay. And speaking for myself, thank God it is.”

Justice Nariman also said that “fortunately”, India chose a “different path than the USA, where judiciary is not involved in the appointment of judges”. “Constitutional principle of independence of the judiciary is crucial to democracy,” he said.

In his seven years as a Supreme Court judge, Justice Nariman left a mark with several judgments that sought to further free speech, privacy and personal liberty, cleanse politics, rein in Constitutional authorities and recalcitrant businesses, and ensure gender justice.