NEW DELHI: The Centre’s top functionaries may be heading towards a showdown with the Supreme Court with the opposition seemingly taking a posture against the government over the appointment of judges to the higher judiciary.
Not just Union law minister Kiren Rijiju but also Vice-President Jagdeep Dhankhar and Lok Sabha speaker Om Birla have spoken strongly against the existing collegium system for appointment of judges to the Supreme Court and high courts.
The Supreme Court has expressed its reservations over the stand of the senior functionaries holding constitutional posts though it has largely chosen to keep silent over the collegium system and the National Judicial Appointments Commission (NJAC) Act struck down by it.
The opposition leaders, who had supported the passage of NJAC in Parliament in 2014, have now opposed the Centre’s stand.
The issue regarding alleged opaqueness of collegium system for appointment of judges to higher judiciary gained currency after Rijiju spoke about it in November last year. He said the collegium system was “alien to the Constitution”.
Speaking at the Times Now Summit in New Delhi, the law minister noted that the Supreme Court created the collegium through a court ruling. Otherwise, he said, all judges used to be appointed by the government before 1991.
However, the issue has generated heat ever since Vice-President Dhankhar talked about parliamentary sovereignty about a month ago.
Vice-President Jagdeep Dhankhar
Vice-President Jagdeep Dhankhar, who is also the ex-officio chairperson of the Rajya Sabha, again spoke against “judicial overstep” in legislative affairs. He noted that judges should refrain from arrogating to themselves the function of lawmaking just as legislatures cannot pass judicial verdicts.
Addressing the 83rd Conference of Presiding Officers at Jaipur on January 11, Dhankhar triggered a row by stating that the Kesavananda Bharati case judgment of 1973, which held that Parliament is not empowered to amend the “basic structure” of the Constitution, set a bad precedent by seeking to establish supremacy of the judiciary.
He said, “Parliamentary sovereignty and autonomy cannot be permitted to be qualified or compromised as it is quintessential to the survival of democracy. No institution can wield power or authority to neutralise the mandate of the people. It is the obligation of Parliament and legislatures to protect the sovereignty of the people.”
Earlier, in his maiden speech in the Rajya Sabha on December 7, he had taken on the judiciary for striking down NJAC.
Dhankhar said, “Essence of democracy lies in the prevalence of the ordainment of the people reflected through a legitimised platform. In any democracy, parliamentary sovereignty is inviolable. We all here are under oath to preserve it.”
He said Parliament, in a much needed historic step, passed the 99th Constitutional Amendment Bill paving way for NJAC. He said there was unprecedented support for NJAC. On August 13, 2014, Lok Sabha unanimously voted in its favour with there being no abstention. Rajya Sabha too, passed it unanimously on August 14, 2014 with one abstention. After 16 of the 29 states ratified the central legislation, the president of India under Article 111 accorded his consent on December 31, 2014.
Dhankhar lamented that the whole exercise was undone by the Supreme Court. “This historic parliamentary mandate was undone by the Supreme Court on October 16, 2015 by a majority of 4:1 finding the same as not being in consonance with the judicially evolved doctrine of 'Basic Structure' of the Constitution.”
Taking exception to the rejection of NJAC by the apex court, Dhankhar said, “There is no parallel to such a development in democratic history where a duly legitimised constitutional prescription has been judicially undone. A glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people of which this house and the Lok Sabha are custodians.”
Dhankhar, who himself is a lawyer, said, “We need to bear in mind that in democratic governance basic of any 'Basic Structure' is the prevalence of primacy of the mandate of the people reflected in the Parliament. Parliament is the exclusive and ultimate determinative of the architecture of the Constitution.”
He regretted that there has been no focus in Parliament on the issue for over seven years now. “This House, in concert with Lok Sabha, being custodian of the ordainment of the people, is duty bound to address the issue, and I am sure it will do so,” he said.
The very next day, that is on December 8, the Supreme Court retorted to Dhankhar’s remarks, reiterating that it was the final “arbiter of law” passed by Parliament.
Justice Sanjay Kishan Kaul, who led a three-judge bench of the apex court, emphasised that the collegium system is the law of the land on the appointment of judges.
He said, “Scheme of our Constitution requires our court to be the final arbiter of law. Parliament has the right to enact a law but the power to scrutinise it lies with the court. It’s important that law laid down by this court is followed, else people would follow law which they think is correct.“
Lok Sabha Speaker Om Birla
Speaking at the same 83rd Conference of Presiding Officers, Speaker Om Birla also remarked that the judiciary ought to respect the sanctity of legislative bodies.
He said, “This is a serious issue and organs of constitutional democracy must adhere to their specified roles. The constitutional bodies should refrain from activism and stick to their responsibilities.”
Law Minister Kiren Rijiju
However, it is Union law minister Kiren Rijiju who is at the forefront of the Centre’s tussle with the judiciary over NJAC and the collegium system.
In the latest development, he wrote to Chief Justice D Y Chandrachud advocating transparency in the two-tiered collegiums and suggested inclusion of government representatives in them.
Aam Aadmi Party (AAP) supremo and Delhi chief minister Arvind Kejriwal criticised Rijiju for making the suggestion. In a tweet, he said, “This is extremely dangerous. There should be absolutely no government interference in judicial appointments.”
However, Rijiju issued a strong rejoinder to Kejriwal’s remarks. In a series of three tweets, he said, “I hope you honour the court's direction! This is a precise follow-up action of the direction of the Supreme Court Constitution Bench while striking down the National Judicial Appointment Commission Act. The SC Constitution Bench had directed to restructure the MoP (Memorandum of Procedure) of the collegium system. The contents in the letter to hon'ble CJI are exactly in conformity with the observations and directions of the Supreme Court Constitution Bench. Convenient politics is not advisable, especially in the name of Judiciary. Constitution of India is supreme and nobody is above it.”
The law minister further said, “How can a government’s nominee be part of the collegium? Some people make comments without knowing the facts! The Constitution Bench of hon'ble SC itself had asked to restructure the MoP. Search-cum-Evaluation committee is envisaged for preparation of panel of eligible candidates.”
Earlier in December, during the winter session of Parliament, Rijiju spoke against the collegium system to appoint judges and said the huge pendency of cases would continue until a new system is implemented.
While replying to a question in Rajya Sabha, and in the presence of Prime Minister Narendra Modi, he noted that the government had a 'limited role'' in appointing judges. He said the fact that over 5 crore cases were pending across the country was a worrying factor.
He said, "We are not working as per the spirit of the House and feelings of the people of the country… The government has very limited powers to fill vacancies of judges... We are giving our full support to reduce the pendency of cases. But questions will keep arising on vacancy of judges and appointments till we create a new system for appointments.”
Asked in a supplementary question whether the government would revive NJAC, the law minister remarked that several retired judges, prominent jurists, advocates, lawyers and leaders of political parties felt it was not proper to strike it down.
In another supplementary, BJP MP Sushil Modi asked if the government would consider abolishing the summer and winter vacations as the high courts have 155 holidays and the Supreme Court 141.
Rijiju replied stating that the government had limited powers to intervene in matters related to the judiciary. However, he said, there was a feeling that long vacations inconvenienced those seeking justice.
He said, "Definitely, as a law minister, it is also my bounden obligation and duty to convey the sense of this House to the judiciary."
The opposition, which had lent unequivocal support to the passage of NJAC in 2014, are critical of the government now. They smell a conspiracy by the Centre to take control of the judiciary.
Senior lawyer and former Union finance minister P Chidambaram, in a series of tweets, countered Dhankhar. “The Hon'ble Chairman of the Rajya Sabha is wrong when he says that Parliament is supreme. It is the Constitution that is supreme. The ‘basic structure’ doctrine was evolved in order to prevent a majoritarian-driven assault on the foundational principles of the Constitution.”
The Rajya Sabha MP said, “Suppose Parliament, by a majority, voted to convert the parliamentary system into a Presidential system. Or repeal the State List in Schedule VII and take away the exclusive legislative powers of the States. Would such amendments be valid? After the NJAC Act was struck down, nothing prevented the Government from introducing a new Bill. The striking down of one Act does not mean that the ‘basic structure’ doctrine is wrong. In fact, the Hon'ble Chairman's views should warn every Constitution-loving citizen to be alert to the dangers ahead.”
Rajya Sabha MP Kapil Sibal, criticised Rijiju for his remarks about the judiciary. He said, “Another ‘gem’ by Rijiju: For us a committed judiciary means ‘committed to the nation’. I always thought judges take oath to uphold the Constitution and the laws without fear or favour.”
In an article in an English daily, the former Union law minister said sovereignty of Parliament is a myth while rule of law is a reality.
Defending the judges, he said, “Unfortunate that we have a law minister who is uninformed about the law and the amount of work judges do. If the law minister worked that hard when proposing new laws the country’s legal system would be better served… Rijiju allegedly said Supreme Court must not take up bail pleas. Does he even know the meaning of liberty?”
But the hardest and consistent attack on Vice-President Dhankhar, law minister Rijiju and the entire Modi government came from Congress general secretary in-charge of communications Jairam Ramesh. He alleged that the “assault” on the judiciary was a design by the Centre to take it under control.
He said, “It also bears mention that a no holds barred assault on one Constitutional institution by another is quite unprecedented. Having different views is one thing, but the Vice President has taken the confrontation with the Supreme Court to an altogether different level!... In my 18 years as an MP, I’ve never heard anyone criticise the 1973 Kesavananda Bharati judgment of the Supreme Court. In fact, legal luminaries of BJP like Arun Jaitley hailed it as a milestone. Now, Chairman of Rajya Sabha says it was wrong. Extraordinary attack on the judiciary!”
The Rajya Sabha MP cited remarks of Dhankhar’s immediate predecessor M Venkaiah Naidu to counter him. “Mr Chidambaram has pointedly countered the Vice-President's assault on the judiciary by saying the Constitution and not Parliament is supreme. Just a year ago, Mr Dhankar's predecessor Venkaiah Naidu-garu had said exactly what Mr Chidambaram has.”
Addressing the inaugural session of the 80th All India Conference of Presiding Officers at Kevadia in Gujarat on November 25, 2020, Naidu had urged the three organs of state to work in harmony guided by the spirit of mutual respect, responsibility and restraint for the cause of nation building. He had expressed concern over the instances of each of the three organs encroaching into the domain of others.
According to a statement issued by the Press Information Bureau (PIB), Naidu said, “None of the three organs of the ‘State’ can claim to be supreme as only the Constitution is supreme and the legislature, the executive and the judiciary are bound to work within the respective domains as defined in the Constitution.”
Ramesh went on to allege that the “assaults” by the vice-president and the law minister were an orchestrated confrontation with the judiciary to intimidate and thereafter capture it totally. “The collegium needs reform. But what this government wants is complete subservience – Its remedy is a poison pill for the judiciary.”
Ramesh said, “The Modi Sarkar is aggressively orchestrating a confrontation with the judiciary in order to capture it completely.”