If the five-member Collegium of the Supreme Court, which includes the Chief Justice of India, decides that a certain judge has to be appointed, then its word is final and a contrary decision by the government will be considered malafide, senior jurist Fali Nariman has said.
Nariman admitted that the collegium may or may not be split in its decision to send its recommendation back to the government insisting on appointing chief justice K M Joseph of the Uttarakhand high court to the Supreme Court, which may lead to a “confrontation with the government…we will cross that bridge when we come to it,” he said.
He indicated that the current impasse over the appointment of a judge may be linked to the government “still smarting” under the Supreme Court’s decision to strike down the parliament’s decision to vote in favour of the National Judicial Appointments Commission (NJAC), which sought to control the appointment of judges. “The (government) is still very upset about that,” he said.
He indicated that the joint Opposition’s move challenging Vice-President Venkaiah Naidu’s decision to impeach the chief justice in the Supreme Court could become a long drawn-out affair.
First of all, he said, the Supreme Court would have to decide whether Naidu’s dismissal is “justiciable or not,” meaning, since the matter concerns Parliament, the Court would have to decide whether it has the power to take up such a motion or not. “If the Court does take that decision, it will then have to decide whether the Vice-President’s decision is untenable or not,” Nariman said.
Moreover, he pointed out, when the Opposition goes to court in appeal against the Vice-President, it would be “up to the Chief Justice to decide which court it should be listed in front of.
“That’s because he is still Master of the Roster, irrespective of the fact that he is involved or not (in this case, in the move to impeach him), and because the question of fixing benches inheres in him. (That prerogative) can’t be taken away or shared with someone else. It inheres in him, and he should say who should decide the matter,” Nariman said.
The jurist added that he didn’t think Chief Justice Mishra would take the Opposition’s case in his court. “Of course he won’t take it. But even if he doesn’t, he has the power to decide who should take it,” Nariman said.
Reacting to the detailed letter today written by Law minister Ravi Shankar Prasad to Chief Justice Dipak Mishra, on why the potential elevation of K M Joseph to the Supreme Court is “inappropriate,” Nariman said that the “government was entitled to the view it had taken. They have given reasons which are quite cogent. They may be right or wrong. Whether this meets with the approval of the collegium is quite another matter.”
According to the Law minister’s letter, Justice Joseph is Number 42 in the seniority list of judges, he hails from Kerala which already has adequate representation in the Supreme Court (and several other states haven’t) and that a judge from the Scheduled Castes and Scheduled Tribes would be preferable at this time.
“The collegium has to say whether they insist that despite this letter Justice Joseph should be appointed or not. The Collegium is the last word,” Nariman said, pointing out that according to the 1993 judgement delivered by Justice J S Verma, the collegium’s word was final, “that this is the law.”
Asked why the government had split the decision to elevate Justice Indu Malhotra to the Supreme Court and not Justice Joseph, he said “They are entitled to do that…Judges don’t go in pairs. They are not husband and wife.”
As for the government’s move to send Justice Malhotra’s elevation to the President for approval, Nariman said that was the right thing to do because elevation to the Supreme Court could only take place when the President issued a warrant in that regard.
Noting that the anniversary of Justice A N Ray superseding Justice Khanna and appointing Justice Beg, on the eve of the Emergency on April 25, 1975, had just passed, Nariman said, “I am totally against supercession. The Chief Justice would be well advised to recommend his successor in accordance with the Constitutional convention. Which is that the seniormost judge becomes Chief Justice.
“And that is Mr Ranjan Gogoi. He has to be named. (CJ Mishra) has to recommend him. And not supercede him as AN Ray did. Ray recommended Justice Beg in Court no 3 and that’s why Khanna retired in a blaze of glory,” Nariman said, adding, that a majoritarian government is “always a potential danger to the judiciary. Always. They want to control.”