Undeterred by criticism of the Collegium system of appointing judges, the Supreme Court on Thursday asserted that it is the “final arbiter” of the law under the Constitutional scheme and as the law stands, the government will “have to appoint” all names reiterated by its Collegium.
Without taking names, a three-judge bench presided by Justice S K Kaul also asked Attorney General R Venkataramani to advise Union ministers who are criticising the Collegium system to control themselves.
“You must advise them to exercise some control,” said Justice Vikram Nath, who was part of the bench hearing a plea by the Advocates Association Bengaluru, seeking contempt of court proceedings against the government for not approving names reiterated by the SC Collegium within time-lines laid down by the court.
Responding to Supreme Court Bar Association president, senior advocate Vikas Singh’s comment that “persons in constitutional posts were saying SC does not have power to exercise judicial review”, Justice Kaul said that “tomorrow people will say basic structure is not part of the Constitution”.
The bench did not take names, but the remarks come close on the heels of statements by Vice President and Rajya Sabha Chairman Jagdeep Dhankar’s criticism of the SC for its 2015 decision to strike down the law to set up a National Judicial Appointments Commission (NJAC) to appoint judges.
During Thursday’s hearing, the bench, also comprising Justice A S Oka, made it clear that courts are the final arbiter of law. “The scheme of our Constitution stipulates the court should be the final arbiter on the position of law. The power to enact a law is with Parliament. However, that is subject to scrutiny by the courts. It is necessary that all follow the law as laid down by this court. Else sections…may decide to follow their own course even where law is laid down…” Justice Kaul said.
Underlining that the Collegium system is the law of the land, he said, “Parliament passed NJAC law but it did not muster the Constitutional mandate. That’s the view prevalent today. Till the law is prevalent, it must be followed to the teeth.”
Giving vent to its displeasure over the government returning reiterated names for appointment of judges, Justice Kaul said it gives the impression that the government will appoint only palatable names.
“There are many cases where the Collegium has dropped the proposals. If you see the average clearance rate, it is about 50 percent,” he said. “So the government’s view is taken into account. There cannot be any undisclosed reasons in a system like this by which we can say that after taking the government’s view, and the court’s clearance, it is blocked, unless some facts have come to light for which the government sends back the recommendation. They are entitled to do that. But once it is reiterated, after seeing that, there is no passage which has been provided by the mandate of the Constitution bench….”
He said, “You are sending names twice over, thrice over, how many times? Which means if you don’t find a name palatable, you will not appoint a person, contrary to the judgment of the court.”
The order also had a “suggestion” for the Collegium, of which Justice Kaul is also a member.
This came after the bench quizzed Attorney General R Venkataramani about the government recently returning to the Collegium nine of 11 first-time recommendations and nine reiterations.
The bench said it had put to the A-G how, under the scheme of law prevalent, are “reiterated names sent back”, and that “sending back the second-time reiterated name would be in breach of this direction”.
Venkataramani in his response “seems to suggest that in two cases earlier, in such a scenario, the Collegium decided to drop their recommendations and that may have given thought process in the government that such reiterated names can also be returned”, the court said. It said that “we are not aware in what special circumstances were these names dropped, but we are sure the Collegium will keep this thought process in mind” in the future.
The bench said “it will be for the Collegium now to address that issue (of the returned files).”