Kiren Rijiju : Law Minister Who Crossed The Line Too Far With Rhetoric Against Judiciary

Rijiju, a law graduate from Delhi University’s Faculty of Law and three-time Lok Sabha member from Arunachal Pradesh was appointed as the law minister in July 2021. On Thursday, in an unexpected cabinet reshuffle, Rijiju was divested of this portfolio and replaced by Bharatiya Janata Party parliamentarian Arjun Ram Meghwal. It can be said with a degree of certainty that Rijiju – with his fiery rhetoric against the Supreme Court collegium and judicial overreach – left the office of the Minister of Law and Justice as  arguably, one of the most polarising ministers, to ever occupy this position.

People of the country not happy with Collegium: Rijiju 

During his tenure as the law minister, Rijiju trained his unwavering focus on the Supreme Court. In one notable instance, he said:

“I know that the people of the country are not happy with the collegium system of appointment of judges. If we follow the spirit of the Constitution, then the appointment of judges is the job of the government. Secondly, there is no practice anywhere in the world except in India that judges appoint judges themselves. Thirdly, as the Law Minister, I have seen that half the time and mind of the judges is spent in deciding who will be the next judge. Their primary job is to deliver justice.”

Besides this, he raised concerns about judicial activism and advocated for an in-house mechanism to keep the judiciary within its constitutional boundaries. Less than a month later, while speaking at the India Today Conclave in Mumbai, Rijiju continued to express his disapproval over the collegium system, saying that it was ‘opaque’ and ‘unaccountable’. He also revealed that he was very ‘upset’ about the top court deciding to keep the controversial sedition law in abeyance despite being told by the government that plans to make changes were in the pipeline.

Collegium system has enough checks and balances: Supreme Court replies to Rijiju’s criticism

Soon after the incumbent chief justice, Dr DY Chandrachud, assumed office, Rijiju’s comments started hitting the headlines with greater frequency – making the then-law minister emerge as an adversary in public eyes. Although he had courted criticism from retired judges, lawyers, experts from the legal fraternity, and even opposition members for his statements, one of Rijiju’s first run-ins with sitting judges was over his ‘opaque and unaccountable’ remark about the collegium system. Within days of the India Today Conclave, the top court passed an order recording its disapproval of the Centre delaying judicial appointments, especially by sitting over names which have been reiterated by the collegium. The directions were passed by a bench headed by Justice Sanjay Kishan Kaul while hearing a contempt petition against the union government for breaching the timeline for judicial appointments. In what could be perceived by many as a reply to the law minister’s tirade, the bench asserted that there were ‘enough’ checks and balances in the system.

The former law minister’s reply came within a month. At the Times Now Summit, besides reiterating his opinion that the collegium system was ‘alien’ to the Constitution of India, Rijiju also said the government could not be expected to be silent signatories to the recommendations of the collegium. He said:

“If you expect the Government to merely sign on the name to be appointed as a judge just because it is recommended by the collegium, what is the role of government then? What does the word due diligence mean? 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 then. The system doesn't function like that. The executive and the judiciary have to work together, they have to serve the country.”

During a subsequent hearing of the contempt petition, Senior Advocate Vikas Singh apprised the bench of the scathing comments made by the parliamentarian. Expressing his disapproval, Justice Sanjay Kishan Kaul – one of the seniormost puisne members of the top court and a part of the collegium – told the Attorney-General for India R Venkataramani:

“Many people may have reservations about the law. But till it stands, it is the law of the land. I have ignored all press reports, but this has come from somebody high enough. It should not have happened. I am not saying anything else…”

Despite the court’s remonstrance, Rijiju continued his campaign against the collegium system during the winter session of the Parliament, insisting that unless the procedure for the appointment of judges changed, the issue of high judicial vacancies would keep cropping up.

CJI and law minister disagree on nature of cases that Supreme Court should be hearing

In another notable instance, the former Union Minister of Law and Justice expressed his disapproval about the top court hearing bail applications and ‘frivolous’ public interest litigation petitions. The very next day, while hearing the plea of a prisoner who was sentenced to undergo consecutive sentences for 18 years for the theft of electricity, Chief Justice Chandrachud, remarked, “No case is too small for the Supreme Court and no case is too big.” This comment was presumably made in response to the law minister’s criticism from the day before.

Continuing the onslaught of verbal jibes aimed at the highest court of the land, the erstwhile law minister, in January, said that the administrative work of judges on the Supreme Court collegium took away their precious time and impacted their judicial output. Within a few days, Rijiju shared, on Twitter, an interview clip of a retired high court judge claiming that the apex court had ‘hijacked’ the Constitution by arrogating to themselves the power to make judicial appointments to the higher courts. “Actually a majority of the people have similar sane views,” Rijiju added, two days later. Criticising the collegium system, he said, “It's only those people who disregard the provisions of the Constitution and mandate of the people think that they are above the Constitution of India.”

Judges don’t have to face elections: Rijiju says, demands govt representative on selection committee

Not long after this, Rijiju brought up the issue of the accountability of judges, while speaking at an event organised by Delhi’s Tis Hazari Bar. He said:

“Judges are appointed once and they don't have to face elections. Judges can't even be scrutinised by the public. Public can't change judges, but it is looking at them, their judgements, their way of functioning and dispensing justice. Public is watching all and making assessments. Nothing is hidden in the age of social media.”

At the same event, the former law minister denied the news that he wrote a letter to the Chief Justice Chandrachud earlier in January advocating for the inclusion of a government representative in the collegium. “There is no head or tail,” Rijiju said, while vehemently denying the ‘rumour’. Not more than a fortnight later, the parliamentarian revealed that the government had urged the top court to include its representative on the search-cum-evaluation committee for the appointment of judges. He said, “For appointment of Judges in the High Courts, the Committee should consist of a representative nominated by Government of India and a representative of State Government(s) under the jurisdiction of High Court as nominated by the Chief Minister(s).”

Some retired judges are ‘anti-India’, trying to make judiciary play role of opposition party: Rijiju

In another development, Rijiju, while speaking at the Central Government Law Officers’ Conference at Bhubaneshwar, said, “Independence of judiciary does not mean it is anti-government.” He asserted that a section of the society allegedly wanted the judiciary to play the role of an ‘opposition party’. He said:

“Some people want to force the judiciary to play the role of an opposition party. Indian judiciary will never accept this. I can tell you Indian judiciary itself will resist these forceful attempts to make Indian judiciary play the role of an opposition party. It can never happen.”

Within weeks, once again Rijiju accused a handful of retired ‘activist’ judges of trying to make the judiciary play the role of an opposition party, even to the extent of “going to the court and asking it to reign in the government”. “How can they ask the Indian judiciary to take the government head-on? What kind of propaganda is this?” In a remark that invited the ire of the legal fraternity, the former law minister said:

“It is a few of the retired judges, few – maybe three or four – few of those activist, part of that anti-India gang, these people are trying to make Indian judiciary play role of opposition party. Some people even go to court and say that and please rein in the government, please change the policy of the government…People of India are with Prime Minister Narendra Modi and with our government. We will not allow this ‘tukde tukde’ gang to destroy India's integrity and our sovereignty. We are very firm about that. Action is being taken as per law and will continue to be taken. No one will escape. Those who have worked against the country will have to pay a price for that.”

In response to this shocking statement, over 300 lawyers from the Supreme Court and various high courts issued a statement condemning the minister’s comment. Senior Advocate KV Viswanathan – who has recently been nominated by the collegium to be a Supreme Court judge – wrote:

“When India’s union law minister describes retired judges in a rather harsh manner, it is something that cannot be taken lightly. For the minister to label retired judges who question ‘state policies’ as being ‘anti-India’ elements is not just a case of a flawed understanding of concepts but also a matter of grave concern for citizens.”

Law minister takes objection to Supreme Court revealing govt’s reasons for sending back collegium recommendations

The law minister has also expressed his dissatisfaction with the top court’s decision to reveal the government’s reasons for not approving certain candidates (such as advocate Saurabh Kirpal, who is likely to become India’s first openly gay judge). At the India Today Conclave in March of this year, the minister said:

“The courts have their own limitations. They have been created to deliver judgements, to deliver justice. They are not like the government, which has access to all the resources required to get information regarding candidates and form an opinion on the basis of it. If the government has taken a call, it is based on certain inputs.”

He further asked, if tomorrow any particular sensitive input by the Research and Analysis Wing, the Intelligence Bureau, or any other agency is to be put in the public domain, “then what is the sanctity of carrying out such a great effort in secrecy in the interests of the nation?” He claimed that despite possessing numerous complaints about and other sensitive information with respect to the candidates nominated by the top court, the law minister has never made such information public. He added:

“There has to be some probity in public life, some discipline, some sensible attitude by the people who sit in responsible positions. I am very mindful of my responsibility, and I will never divulge all the information on a public forum, which is not going to help me in the purpose for which we are sitting there.”

Neither executive nor judiciary should cross Lakshman Rekha: Rijiju

Over the following months, Rijiju notably toned down his rhetoric, often preaching a message of coordination over conflict. However, as late as the beginning of May, the minister said that those raising questions about government interference in the functioning of the judiciary could also raise questions about judicial interference in matters of governance. The law minister, speaking at an event organised by the Bar Council of Maharashtra and Goa in Mumbai further underscored that judicial independence cannot be seen in isolation. He added that neither the legislature nor the executive nor judiciary should try and cross the Lakshman Rekha of their constitutional boundaries. He said:

“A question has been raised regarding the independence of the judiciary, whether the government interferes in the functioning of the judiciary, this question can also be asked the other way around, ‘does the judiciary interfere in the functioning of the legislature or not. The independence of the judiciary cannot be seen in isolation. There is independence of legislature as well. Because the constitution has set boundaries for everyone. No one should try and cross this Laxman Rekha because as per the constitutional scheme of things, the country is running fine.”

Significantly, at the same event, the minister also advocated for Indian languages to be used in constitutional courts across the country, linking the use of the English language in courts to the high cost of litigation. Delivering his speech in Hindi, Rijiju said:

“Why shouldn't we use Indian languages in courts? We should think in Indian languages. Know all foreign languages, but thoughts should be Indian whether you have studied from Oxford or Harvard.”

Conclusion

The union minister’s comments are part of a series of blows aimed by the executive at the existing collegium system. Another one of its fiercest critics is the vice-president of the country, Jagdeep Dhankar, who has, on multiple occasions questioned not only the top court’s decision to strike down the National Judicial Appointment Commission, but also the judicially evolved basic structure doctrine itself. Some of these comments – both by Rijiju and Dhankar – have come under the judicial scanner.

In an unprecedented development, a lawyers’ association approached the Bombay High Court seeking the removal of the vice president and the former law minister from their respective posts. The petitioner alleged that the two had disqualified themselves from holding constitutional posts because of their conduct, having expressed their lack of faith in the Constitution of India – by levelling constant public criticism against the judiciary’s ‘collegium system’ and making remarks against the basic structure doctrine. However, the high court dismissed the public interest litigation (PIL) petition, holding, “The credibility of the Supreme Court of India is sky-high. It cannot be eroded or impinged by the statements of individuals.”

Three days ago, this dismissal order was upheld by the top court. A bench headed by Justice Kaul – incidentally the same judge who had earlier expressed his disappointment over the remarks made by the then-law minister – refused to set aside the high court’s order. The bench said:

“We believe that the high court’s view is correct. If any authority has made an inappropriate statement, the observations that the Supreme Court is broad enough to deal with the same is the correct view.”

Three days later, Rijiju is shunted out of the high-profile law ministry and handed the charge of the low-key Ministry of Earth Sciences. Some critics believe that this surprise rejig of the Prime Minister Narendra Modi-led cabinet is because of Rijiju's repeated swipes at the Supreme Court and its judges. Others quickly dismiss this theory. But what cannot be gainsaid is that Kiren Rijiju’s lasting legacy as the union law minister – notwithstanding the schemes that were launched under his leadership, e-court facilities inaugurated, or memoranda of understanding signed with other countries – would be that of antagonism and strife between the executive and the judiciary.