Expressing disapproval at Union Law Minister Kiren Rijiju’s criticism on Friday of the top court’s observations that the government was sitting on files relating to appointment of judges cleared by the Collegium, Supreme Court judge Justice SK Kaul Monday said this “should not have happened”.
In an interview at the Times Now Summit 2022, Law Minister Rijiju had said, “Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show…” Describing the Collegium system as “alien” to the Constitution, he had said, “You tell me under which provision the Collegium system has been prescribed.”
When referred to related news reports on Monday, Justice Kaul, without naming the Union Law Minister, said, “Let them give the power. We have no difficulty… I ignored all press reports, but what he says, that when somebody high enough says let them do it themselves, we will do it ourselves, no difficulty… It came from somebody high enough. Should not have. All I can say is, should not have happened.” He was sharing the bench with Justice AS Oka.
Solicitor General Tushar Mehta urged the court not to go by media reports, to which Justice Kaul said, “It’s an interview…with an interview, it becomes difficult to deny what you have said yourselves… I am not saying anything. I am just expecting both the Attorney General and Solicitor General to play the role of a law officer… to advice the government to ensure that the law of the land as laid down by this court is observed.”
The bench of Justice Kaul and Justice Oka was hearing a contempt plea by the Advocates Association Bengaluru which said the government was yet to approve 11 names reiterated by the Supreme Court Collegium in violation of the norms laid down by the top court.
WITH huge pendency of cases in all courts, the Supreme Court has been taking the government to task for holding back appointments cleared by its Collegium. The government, on the other hand, not only keeps citing the demands of due diligence, but also keeps questioning the Collegium system of appointment itself, describing it as opaque and alien to the Constitution.
Earlier on November 11, while hearing the matter, the bench chaired by Justice Kaul had noted that “keeping names pending is not acceptable”, and also issued a notice to the Secretary (Justice) in the Central government.
Taking it up Monday, the bench sought to know if the Centre was not clearing the names because the National Judicial Appointments Commission (NJAC) had not passed muster. “How will the system work if the names are not cleared? We have expressed our anguish…It appears that the government is not happy that the NJAC has not passed muster. But can that be the reason to not clear names?” asked Justice Kaul.
While on the one hand everyone wants first generation lawyers graduating from law schools to become part of the judiciary, the bench said, “…but they say what is the guarantee our names will not languish for months together.” “If this happens…the quality of judicial appointments (will) go down. It’s in nobody’s interest,” Justice Kaul said.
Referring to a lawyer who withdrew consent to becoming a judge, Justice Kaul said, “What is the signal we are sending? It fails us. It’s the anguish which we are expressing. We kept on thinking things will improve… I think we expressed our opinion in very soft words when he heard the matter last time.”
When Attorney General R Venkataramani said “we should not be taking a rhetorical standard”, Justice Kaul responded, “Even today, we have kept our patience because the Attorney is appearing. Earlier Mr K K Venugopal (former AG) appeared when I had occasion to deal with this issue… As (the) highest officer in this country, a duty is there to see that good people join the bench and the orders of the court are respected.”
To sort out problems, a three-judge bench had laid down timelines to be followed by the government in case of appointing judges, Justice Kaul said, emphasising the timelines must be adhered to. “Timelines having been laid down, those timelines have to be adhered to unless there is some exceptional circumstance, some 1 case or 2 cases. This much time period, not 20 cases pending like this…,” he said.
Venkataramani said, “There is a need to expedite without bringing in any other factors which may dilute the entire process of fairness of consideration and adding quality to the whole process… So, after receiving the (November 11) order, I had a couple of discussions at the secretary level and I thought I need to go beyond that and some facts were told to me, but I had some questions not as an AG but as an officer of the court because all of us are concerned in our common pursuit of the quality of appointment to the courts.” He also said he will follow up on the issue.
“Please understand, also the further anxiety you must address. Once timelines are laid down, and we took care to lay down broadly the guidelines, because we respect the equations which arise in such (an) appointment process. But those timelines, some of them have gone completely haywire. And aggravating circumstances have occurred after that. So, we would look forward to both of your persuasion with the government to see that some progress is made by the next time you come…,” said Justice Kaul.
Pointing out that appointment to High Courts is a “very important issue”, he said, “…We sent names in anticipation of vacancies…Last two months, the whole thing is at a standstill. So, whether it’s appointment to the highest court, whether its appointment of Chief Justices… please resolve this… Don’t make us take decisions on the judicial side on this,” Justice Kaul said.
As the court fixed the next date of hearing the matter on December 8, Senior Advocate Vikas Singh, who appeared for the petitioners, sought a shorter date. To this, Justice Kaul said, “You think I am not bothered? I’m greatly bothered. We have expressed our sentiments to both law officers.” Attorney General G Venkataramani said, “The trust that the court places upon us, I think will be reciprocated and it will save time.”
“I have no reason to doubt that. It will be done and you make sure that at least some part of the work is done before… All I know is senior members of the Bar holding the office of Attorney General and Solicitor General, the government should be listening to them. And I think both of you are competent enough and senior enough to convey our sentiments to the government,” said Justice Kaul.
As the Attorney General remarked that things have to move in a certain way, Justice Kaul responded, “Attorney, when things have to move, they move in a day. When they don’t have to move, they don’t move in months. This is the problem”. Venkataramani said, “It’s both a question of principle, policy, high consideration, also strategy, so many things are involved.”
Responding, Justice Kaul said “maybe you have reservations on the law… But till the law stands, it is the law of the land. Till it’s the law of the land… if the government says it will delay or not adhere to the law of the land, tomorrow somebody else may say something like this about another portion of the law. You must look at a larger picture.”