6 min readNov 10, 2022 09:07 AM IST
First published on: Nov 7, 2022 at 04:16 PM IST
Speaking at a media conclave on November 4, Union Minister of Law and Justice Kiren Rijiju came out against the collegium system under which appointments of judges to the high courts and the Supreme Court are made by the Chief Justice of India (CJI) after consultations with the senior-most judges. He is reported to have said that the collegium system is “opaque” and “not accountable” and that “across the globe judges do not appoint judges, but in India, they do so.” He further said that after the SC struck down the National Judicial Appointment Commission Act, 2014 (NJAC), the government could have taken other steps. Instead, it respected the top court’s decision, and did not act immediately to find alternate ways, but that does not mean “the government will be silent forever”. At a time when many independent institutions are under pressure, such a statement comes as no surprise.
The tone and the tenor of Rijiju’s words are overbearing, if not threatening. One wonders what he intended to convey when he said that after the SC’s judgment on NJAC, the government could have taken other steps and that it will not remain silent forever. It sounds as though the government did the Court a favour by accepting the NJAC judgment. Under the Constitution, the power of judicial review of a legislation lies with the SC. So, if the Court strikes down a law, the government has no option but to accept the verdict, however unpalatable it may be. Of course, it can always table a fresh bill in Parliament, but as of now, the verdict stands, and the SC continues to enjoy primacy in the matter of appointment of judges to higher courts. So, until it is overturned either by the Court itself or by Parliament, the NJAC judgment must be respected and accepted with magnanimity, and not grudgingly, as seems to be the case.
Still, not everything is hunky dory with the collegium system. It cannot be denied that some elevations in the past have raised eyebrows. There have been cases where relatives of SC judges have been appointed as high court judges ignoring merit. It also cannot be denied that judges are transferred by the collegium without any seeming justification. With due respect to the members of the collegium, both past and present, they too need to do some soul-searching. Nobody knows why, during the regime of CJI Ranjan Gogoi, two high court judges, who were at serial number 21 and 33 of the All-India Seniority list, were appointed to the Supreme Court, ignoring the claims of many Chief Justices and judges senior to them.
Incidentally, the government was a party to these appointments. It could have sent the file back to the collegium to ascertain why seniority was ignored at such a mass scale. But it did not. Take another case: Justice Akil Kureshi, who retired as Chief Justice of the Rajasthan High Court, was not recommended for elevation to the Supreme Court, notwithstanding the fact that he was the senior-most judge in the All-India Seniority list of judges, and also despite the fact that one of the members of the then collegium reportedly objected to Justice Kureshi being passed over. Again, the government raised no objection, nor sought any clarification over his non-recommendation. In yet another case, Justice Muralidhar of the Delhi High Court was transferred overnight to the Punjab and Haryana High Court, apparently because he took the Delhi police to task for not registering FIRs against BJP leaders who had allegedly made hate speeches. It was the government which issued the notification of his transfer with immediate effect. And let us not forget judges like U R Lalit, R N Aggarwal, S Rangarajan, S H Sheth and many others who suffered on the dictates of the state and a pliant Supreme Court, but stood firm on their oath of office. Given this background, what is all the hullabaloo about? The government cannot point fingers at the collegium when it too has been party to its wrongdoing.
When the SC, in the NJAC judgment, has held that the CJI, in consultation with senior judges, is best equipped to know and assess the worth of a candidate and their suitability for appointment as a Supreme Court or High Court judge, a heavy burden lies on the shoulders of the collegium to ensure that the names recommended are strictly based on merits and are free from bias, prejudice and favouritism. It is sincerely hoped that the collegium will be more open and transparent in its recommendations for appointments and transfer of judges.
While speaking at the conclave, the law minister is also reported to have asked why the SC involved itself in bail petitions, and why it had put the sedition law in abeyance when the government had said that it was reviewing the provision. The minister also said “there is a Lakshman rekha for everybody. Do not cross the Lakshman rekha in the interest of the nation.” These are strong words. The Minister is perhaps forgetting that under the Constitution, the SC has been entrusted with the task of protecting the constitutional rights of the people, especially the right to life and liberty, as enshrined in Article 21. Given the times in which we live, when FIRs are registered against persons merely for sharing a video in which someone is being thrashed and asked to chant “Jai Shri Ram”, or sharing a tweet, or for words spoken or written against the government being viewed as seditious and leading to their arrests, it is the fundamental duty of the courts, especially the SC, to come to their rescue. The Court, in fact, should be more proactive in hearing the bail applications, rather than turning away the victims, as is being suggested. It is time for the judiciary to stand up, face the threats and onslaughts, while we the citizens hope and pray that none will push our only saviour institution off the precipice.
The writer is a former judge of the Delhi High Court
The tone and the tenor of Rijiju’s words are overbearing, if not threatening. One wonders what he intended to convey when he said that after the SC’s judgment on NJAC, the government could have taken other steps and that it will not remain silent forever. (File) 
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