A fresh bout of chills rocked the ongoing cold war between the Supreme Court and the Union government on Thursday after a bench of Justices Sanjay Kishan Kaul, Abhay S Oka, and Vikram Nath rapped the Centre over its sporadic attacks on the Collegium system of appointments to the higher judiciary.
Collegium system 'law of the land'
In a stern statement, the bench observed that the Collegium system is the "law of the land" which should be "followed to the teeth," and added that just because a few individuals occupying high offices voice their disapprovals, it will not cease to be the law of the land.
"Comments on the Supreme Court Collegium by government functionaries are not well taken, you have to advise them," the top court told Attorney General R Venkataramani today.
"Parliament has the right to enact a law, but the power to scrutinise it lies with the court. It is important that law laid down by this court is followed, else people would follow law which they think is correct," the apex court reiterated.
Against this backdrop, the Court adjourned the matter for further hearing until next week and asked the Attorney General to discuss the case with the Central government.
Centre's delay in clearing judicial appointments
Earlier on November 28, the apex court had lambasted the centre over its delay in clearing judicial appointments, saying it was "crossing the Rubicon." The Court had warned that "Till the law stands, it has to be followed... Don't make us take a judicial decision in this regard."
Addressing AG R Venkataramani, who was representing central government, Justice Kaul said, “Mr. Attorney General, I have ignored all press reports, but this has come from somebody high enough also with an interview... I am not saying anything else. If we have to, we will take a decision.”
In the same vein, the Court had also expressed displeasure at Law Minister Kiren Rijiju's repeated swipes against the Collegium system, specifically his recent comment that the Collegium system was "alien" to the Constitution. To this end, the bench noted that "When someone in a high position says that... it should not have happened."
The Court further opined that when the Centre cannot cross a line in rejecting the Collegium's recommendations without recording the reasons for doing so. "Once the Collegium reiterates a name, it is the end of the chapter... It (the government) is crossing the Rubicon by keeping the names pending like this," the court reaffirmed.
About NJAC Act
This fresh round of comments come against the backdrop of a prolonged tussle between the judiciary and executive over the striking down of the National Judicial Appointments Commission in 2015 in the Fourth Judges Case.
The NJAC was formed through the 99th constitutional amendment of Article 124A in August, 2014 after being passed by both the houses of the parliament. As per the proposals NJAC was about to comprise Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. The two eminent persons were proposed to be nominated for three years by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha.
But in October 2015, the apex court reinstated the primacy of the Collegium in appointments to the higher judiciary by striking down provisions of the NJAC Act. The Court observed that the law offered the executive an equal power in judicial appointments to constitutional courts which violates the doctrine of “separation of power” enshrined as part of the Basic Structure of the constitution.
Centre's attacks on the Collegium system
However, over the years, the NDA government's Law Minister, Rijiju, has hinted at the possibility of reviving the NJAC system of appointment, while pointing out the lacunae in the Collegium system's transparency.
The sentiment was echoed by Vice President Jagdeep Dhankar earlier this week, when he said that a law passed by the Parliament, which reflects the will of the people, was "undone" by the Supreme Court and "the world does not know of any such instance". Citing provisions of the Constitution, he also said when a substantive question of law is involved, the issue can be looked into by the courts.
"Nowhere it says a provision can be run down," Dhankhar said in the presence of CJI DY Chandrachud, expressing his displeasure at the striking down of the NJAC Act. Describing this judicial activism as a "subtle incursion" by one wing against another, Dhankar said that such a move has the "capacity to unsettle the apple cart of governance" in a democracy.
Lately, reports revealing that the Narendra Modi government on November 25 returned 20 names to the Supreme Court for appointment to judges mark another nail in the coffin for the growing friction between the judiciary and the executive. The reports said the government expressed strong reservations" about the recommended names.