-> Narasimhan Vijayaraghavan
On 15th Dec, 2022, the Union law minister Kiren Rijiju continued to mount pressure on the collegium system, telling the Rajya Sabha that the issue of vacancies and appointments in the higher judiciary would “continue to linger” until a new system is put in place. Literally, the Union of India has taken its confrontational attitude and conduct to extremes. It does not augur well for a ‘healthy and harmonious’ relationship between legislature, executive and judiciary, in a democracy. The law minister has been vociferously vocal on every other platform putting the blame on judiciary for ‘delayed appointments’ and it being the primary cause for the pendency pandemic.
Earlier on 7th Dec,2022, Vice President Jagdeep Dhankhar opened a new front of attack on the collegium slamming the Supreme Court for scrapping the law passed by parliament to put in a place a new method of appointing judges.Dhankar said that by scrapping the National Judicial Appointment Commission (NJAC), which was established by an Act of parliament, the Supreme Court severely compromised parliamentary sovereignty and disregarded the mandate of the people.
Presiding over the Rajya Sabha for the first time as chairperson, the vice president said any incursion by the three organs of the government into each others’ domain has the potential to upset the governance apple cart and asserted that all should respect the “Lakshman rekha”. Dhankar was particularly critical of the ‘failure’ of Parliament to debate the dumping of athe NJAC (which reflected the will of the people, having been passed as a constitutional course with just one dissenting vote of the maverick Ram Jethmalini). Vice President’s remarks on NJAC’s scrapping come in the backdrop of frequent run-ins between the government and the judiciary over the appointment of judges.
Contextually, one cannot ignore what the Supreme Court said on 9th Dec,2022, in a contempt hearing over the issue of delays in appointments of ad hoc judges, saying that the Collegium System is the ‘law of the land’ and must be followed.
The Supreme Court bench, headed by Justice Sanjay Kishan Kaul, also accused the government of playing a game over the matter, and considered the government to be harping over an issue it already considered settled by a higher Constitutional Bench earlier.
Be that as it may, what is clear, obvious and present danger is the Union government challenging the present dispensation of Collegium, arising out the dismissal of the NJAC,2014, in 2015, in a war of words.,Who can forget the stinging commentary ( personal views, he said) from the late, lamented Union finance minister Arun Jaitley, in a Facebook Post. In unusually strong remarks over the Supreme Court’s reasoning for striking down the NJAC Act, Finance Minister Arun Jaitley on 18th Oct,2015, said Indian democracy cannot be a “tyranny of the unelected” and to strengthen independence of judiciary, one does not have to weaken Parliamentary sovereignty.
Terming as “erroneous logic” reasons given by a five-judge Constitution bench which declared as unconstitutional the National Judicial Appointments Commission (NJAC) Act, 2014, and also the 99th Constitution Amendment, Jaitley warned that democracy would be in danger if the “elected are undermined”.
“The Indian democracy cannot be a tyranny of the unelected and if the elected are undermined, democracy itself would be in danger,” he said in a Facebook post titled ‘The NJAC Judgement – An Alternative View?’.
Jaitley, also a former Law Minister, said as someone concerned about the independence of judiciary and the sovereignty of Parliament, he believed that the two can and must co-exist.
“Independence of the judiciary is an important basic structure of the Constitution. To strengthen it, one does not have to weaken Parliamentary sovereignty which is not only an essential basic structure but is the soul of our democracy,” he said.
Thus far, true and real. But such open,defiant and confrontational clime does not aid and assist the cause of the democratic institutions of We the People. Who is right? Who is wrong? Who needs to pivot? Who should blink first? Or who needs to? So many posers, with no comforting answers.
Truth to tell, Collegium is a beast invented by the apex court. Our forefathers never debated it. The Executive was held out as being in charge. But the ‘consultation’ with the Chief Justice was put on a pedestal. In the wake of multiple disappointments as appointments to the higher judiciary, the Supreme Court ‘took law into its own hands’ ( as Justice Krishna Iyer put it), and elevated ‘consultation’ to ‘concurrence’ and thence to Collegium as per which ‘ judges appoint themselves’ as Prof.Upendra Baxi said. Yes, Collegium is not good. It may need to go. But how?
Rule of law, by which all three pillars of democracy are bound, commends that it must be by LAW. NJAC,2014, was one such Law. It was upended by the Supreme Court which had the power under Art.13 of Constitution to do what it did by a 4:1 majority. Executive did not like it. Could not stomach it. But can it be ignored? Implications therefrom, avoided?
Art.141 of the Constitution says -The law declared by the Supreme Court shall be binding on all courts within the territory of India. Can Jagdeep Dhankar Saab or Kirren Rijju bhaiyya or Modi government claim immunity from the binding nature of the NJAC verdict in 2015? However, unjustified, unacceptable or unpalatable it was or is. As Justice Sanjay Kishan Kaul, pointed out , it is now ‘ law of the land’.
Can any lawfully elected government adopt such a confrontational attitude and conduct to disrespect and disregard the ‘law of the land’? The remedy is to come up with NJAC 2.0, if they have the gumption, hall and thrall of the numbers game, like they came up with NJAC 1.0.
The Executive and Parliament have the Template to work with. The decision of the Supreme Court on NJAC 1.0 dt.16th Oct,2015 is staring at them. Like it or lump it, it is the ‘law of the land’. Work on it to remove the irritants’ impacting ‘ independence of judiciary’ as a basic feature of the constitution. No point in crying or bawling that there were no ‘irritants’ at all. They have been declared to be antithetical to ‘independent judiciary’. Surely, Parliament cannot re enact NJAC 1.0 and challenge the earlier imprimatur. Or claim NJAC 1.0 verdict must vanish into thin air.
Parliament has to accept the reality. It has to yield to conquer. Smart footwork by clever legal wordsmiths can deliver, if they set their mind to it. No one can expect Supreme Court to say as if an ‘advance ruling’ that NJAC 2.0 to pass muster, shall be worded thus… No, not possible. It can never happen.
Now that so much water has flown and so many ‘words’ exchanged by constitutional authorities, each knows where they stand. Parliament must take note. They must play fair. Not peeved. Executive must know, realize and understand where it ‘stands’. And what it needs to do to ensure that the Collegium went lock,stock and barrel. Do it.
Sit. Burn the midnight oil. Have the experts dig into NJAC 1.0 verdict syllable by syllable. Word NJAC 2.0 to align with the top court ‘expectation’. The presence of the Union Law Minister, in the selection panel, according to Supreme Court was the ‘red rag’ offending constitutional core principles. Dissenters called it a convenient’ red herring’. Whatever, the Template is there.
Pick up the gauntlet. Let the Supreme Court know that ‘law of the land’ can change by resort to ‘law’ made by Parliament as in Art.245. Yes, it may still be a ‘contest’ as the Supreme Court may be vary of letting go what they have ‘tasted’ for three decades now. At least, the ‘law’ will be tested in a manner known to ‘law’.
And not by responsible institutions debating in public as to who was right and who was wrong. As of now,Supreme Court is right. Like it or not. The collegium beast is real. And here. As it is the declared ‘law of the land’. The three branches have to work within the contours of this ‘law’ alone.
The Union Law Minister Kirren Rijju , as ‘law of the land’ stands today, is blatantly in the wrong. His bombastic utterances may be for public consumption. That will not pass muster, no matter how sidelined executive felt in the constitutional scheme of things. And his ‘clarification’ that he was not ‘confrontational’ but only giving ‘replies’ in Parliament, on 21st Dec 21,2022, is a bit of a shallow swallow.
Collegium needs to go. May have to go. But will not go as mandated by the law minister. Rule of Law must prevail. Not war of words or powerful pronouncements from exalted pulpits.
That is no and not good. It is bad. We the People deserve better. Do you agree?
( Author of Constitution & its Making/Working-Musings, Anecdotes, Episodes, OakBridge, 2021/2022- practicing advocate in the Madras High Court)