'Collegium System Is The Law Of The Land, Must Be Followed' : Supreme Court Tells Centre; Asks AG To Advise Govt Of The Legal Position
The Supreme Court on Thursday told the Central Government that the collegium system is the "law of the land" which should be "followed to the T". Just because there are some sections of the society who express a view against the collegium system, it will not cease to the law of the land, the Court added.
The Constitution Bench judgements which formulated the collegium system for judges' appointment must be adhered to, the bench told the Attorney General and the Solicitor General in no uncertain terms.
"There are sections in society who do not agree with the laws made by the Parliament. Should the Court stop enforcing such laws on that ground?", a bench led by Justice Sanjay Kishan Kaul asked the Attorney General for India R Venkataramani.
"If every one is society decides which law to follow and which law to not follow, there would be a breakdown", Justice Kaul warned.
The Attorney General said that there are two instances of the Supreme Court collegium itself dropping the reiterated names which were sent back by the Centre and this gave rise to a perception that the reiterations might not be conclusive. However, the bench retorted by saying that such isolated instances will not give the "government a license" to ignore the Constitution Bench judgment which clearly lay down that collegium reiterations are binding. When there is a judgment, there is no room for any other perception, the bench orally stated. In the order dictated after the hearing, the bench observed that it is not aware under what circumstances the collegium earlier dropped the two reiterated names.
A bench comprising Justices Sanjay Kishan Kaul, Abhay S Oka and Vikram Nath was hearing a contempt petition filed by Advocates Association of Bangalore against Centre breaching the time line for judicial appointments. A PIL filed by the NGO Centre for Public Interest Litigation in 2018 regarding the same issue is also listed today.
The AG said that he has had discussions with the Ministry following the concerns raised by the bench on the last occasion and sought for some more time to "fine-tune" the issues.
"Attorney you will have to do a little better...we need to find a way out. Why do you think we issued only a notice instead of a contempt notice? We want a solution.How do we sort out these issues? There is some kind of an infinite battle.", Justice Kaul said as the hearing of the day came to an end.
The bench also noted today that the Centre recently send back 19 names, including 10 names reiterated by the collegium. The bench added that it would be for the Collegium to address that issue.
"We expect the Attorney General to play the role of the senior most law officer in advising the Government of the legal position and in ensuring that the legal position is followed. The scheme of the Constitution requires this Court to be final arbiter of the law. The power to enact the law is with the Parliament, but it is subject to the scrutiny by this Court. It is important that the law laid down by this Court is followed or else people would follow law which they think is correct", the bench dictated in the order.
The Attorney General assured the bench that he will back after further consultations with the Government. The case will be heard again on January 6, 2023.
Delay is deterring meritorious people from joining judiciary
The bench reiterated its concern that the delay in appointments is deterring meritorious people from joining judiciary and it was a troublesome situation.
"In many cases Collegium has dropped some proposals....The Govt view is taken into account. After taking Govt's view and the collegium's view names are proposed, the Govt sends back the name, but when they are reiterated, you have to appoint, there is no other way", Justice Kaul told the AG.
"It is not that the time-line is not adhered in each case. But, what troubles us is that there were many cases pending for months and years and some were reiterated cases", Justice Kaul added.
Some names are approved fast, some are kept pending
Justice Kaul also said that "sometimes the names are approved fast" and some others are kept pending for months. "How will this ping pong battle last?", Justice Kaul wondered. The judge pointed out that the selective approval given for names disturbs the seniority. "When collegium clears the name their are many factors in mind...You maintain a hierarchy as in how it should go. But if the hierarchy is disturbed....".
Comments against collegium by government functionaries not well taken
Senior Advocate Vikas Singh, the President of the Supreme Court Bar Association, impliedly referring to the recent statements made by the Law Minister and the Vice President about the collegium system, said "People in Constitutional post are saying Supreme Court does not have judicial review. That is basic structure. It is a little upsetting".
"Tomorrow people will say basic structure is also not a part of Constitution!", Justice Kaul responded.
"Mr. Singh is referring to speeches...which is not very good for...Making comments on the Supreme Court collegium is not very well taken. You have to advise them to control their....", Justice Vikram Nath told the AG.
Advocate Prashant Bhushan, appearing for the Centre for Public Interest Litigation, stated that his petition was filed four years ago highlighting the issue of Government selectively keeping some names pending. He cited the example of Government delaying Justice KM Joseph's elevation in 2018. "There was a time when even J. Joseph's appointment was not being made", he said.
Solicitor General of India Tushar Mehta took strong objection to Bhushan's petition, saying that the issue should not be converted into a public debate where anyone can take the names of the judges.
"The bar is a stakeholder, the court is a stakeholder, collegium is a stakeholder. Does it merit to become a matter of public interest?. He is taking names of judges, this needs to be stopped. CPIL is a stakeholder in food grains production, children's malnutrition and judges appointment! This has to be stopped", the SG vehemently stated.
"A lot of things need to be stopped. A judgment of the constitution bench has to be adhered to", Justice Kaul then told the SG, while adding that CPIL's petition is also listed today.
MoP issue is over, bench tells the AG
The bench disapproved the view expressed by the Centre in the status report filed by the AG that the Memorandum of Procedure (MoP) for appointment of judges need a reconsideration. The Centre had referred to certain observations made by Justices Ranjan Gogoi and J Chelameswar in their judgments in the suo motu contempt case against Justice CS Karnan that the MoP needed revisit.
The bench categorically stated that the MoP has been finalized, although it is open to improvements. However, the Government cannot act as if there is no final MoP.
Justice Kaul told the Attorney General that the issue regarding the Memorandum of Procedure for the judges' appointment is over and the Government cannot act on the premise that the matter is pending.
"Once the collegium in its wisdom, or as you would think in the lack of it, had worked out the MOP there is no up and down that is to take place. The MOP issue is over. Now you say in a subsequent judgment 2 judges made some observations. Now is it logical to latch on to those observation of 2 judges when there is a Constitution Bench decision?There is no MOP issue still languishing. Once collegium says something Govt can improve on MOP. But the MOP issue is over", Justice Kaul told the AG.
"Centre might have sent later communications seeking a change.. but those letters will not unsettle the MoP. But it is for the collegium to take a call. Govt can have a view. Govt is not precluded from seeking some changes in MOP. That I acknowledge. But the issue is not pending", Justice Kaul clarified.
"There is an existing MoP. You say some changes are desirable. The fact that you want some changes will not take away the existence of the MoP", Justice Kaul asserted.
"You say Justices Ranjan Gogoi and Chelameshwar said that MoP needs a relook. but then so what.. even if two judges opine something.. How does it change the collegium decision? The system exists as on date. 2 judges opinion does not become verdict of 7 judges view. You have conveniently picked up some views of the judges and included that. How can that be done. you may want some changes but in the meantime collegium along with existing MoP has to work. now it looks just like a blame game", Justice Kaul asked the AG.
SCBA President urges the Supreme Court to take strong action
"Some strong action has to be taken. Either mandamus is issued or contempt is issued. These are the only two options...Your lordships cannot be taken for a ride like this", SCBA President urged during the hearing.
On the last hearing date, November 28, the Court had expressed dismay over the Law Ministers' comments against the collegium system. The Court had also urged the Attorney General and the Solicitor General to advise the Centre to follow the law laid down by the Court regarding judicial appointments. The Court reminded that names reiterated by the Collegium are binding on the Centre and that the timelines laid down for completing the appointment process are being breached by the executive.
While expressing a serious concern that the delay in appointments "frustrates the whole system", the bench also flagged the issue of Centre "splitting up collegium resolutions" as it disrupts the seniority of the recommendeees.
The bench also comprising Justice AS Oka was considering a contempt petition filed by the Advocates Association Bengaluru in 2021 against the Centre not approving 11 names reiterated by the Supreme Court collegium. The Association contended that the Centre's conduct is in gross violation of the directions in PLR Projects Ltd v. Mahanadi Coalfields Pvt Ltd wherein the Supreme Court directed that names reiterated by the Collegium must be cleared by the Centre within 3 to 4 weeks.
On Nov 11, criticising the Centre for delaying the appointments, the Court had issued notice to the Secretary (Justice).
"Keeping names pending is not acceptable. We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened.", the bench noted in the order.
The bench observed that in the cases of 11 names which have been reiterated by the collegium, the Centre has kept the files pending, without giving either approval or returning them stating reservations, and such practice of withholding approval is "unacceptable".
"If we look at the position of pending cases for consideration, there are 11 cases pending with the Government which were cleared by the Collegium and yet are awaiting appointments. The oldest of them is of vintage 04.09.2021 as the date of dispatch and the last two on 13.09.2022. This implies that the Government neither appoints the persons and nor communicates its reservation, if any, on the names.", the bench observed in the order.
One of the instances cited in the petition is that of Senior Advocate Aditya Sondhi, whose elevation to the Karnataka High Court was reiterated in September 2021. In February 2022, Sondhi withdrew his consent for judgeship as no approval regarding his appointment was forthcoming.
[Case Title: Advocates Association Bengaluru v. Barun Mitra And Anr. Contempt Petition (C) No. 867/2021 in TP(C) No. 2419/2019]
Citation : 2022 LiveLaw (SC) 1013
Judges Appointment- Collegium reiterations are binding - Supreme Court asks Centre to explain by reiterated names are sent back to the collegium- 10 names reiterated by the Supreme Court collegium sent back by the Central Government- SC asks Attorney General as to how under the Scheme of law prevalent, are reiterated names sent back -Refers to para 486, clause 5 of the second Judges case reported in 1993 (4) SCC 441- sending back a second time reiterated names would be in breach of this direction
Judges Appointment- Memorandum of Procedure is final- The final view of the collegium was expressed in the MoP which was received by the Govt. on 13.03.2017- The undisputed legal position that the MoP is final. That this does not mean that if the Government suggests some changes or improvements in the MoP, that cannot be looked into but till that happens, the MoP as existing would apply.
Judges Appointment- Delay in finalizing the appointments discouraging eminent lawyers from joining the bench-There has been reluctance on the part of the successful lawyers to accept the honour and what we have stated in our last order is out of the experience of not being able to persuade such eminent people to join the Bench with one factor largely weighing in with them apart from any other issue, i.e. the long prolonged process of appointment and putting their career on hold. Thus on one hand, they are making a monetary sacrifice to come on to the Bench in a larger cause of justice but in that process they do not want their life to be dragged into an uncertainty. This has also resulted in at times, persons withdrawing their consent who are recommended to be elevated
Judges Appointment - Supreme Court disapproves Centre splitting up collegium recommendation - When the recommendations are cleared by the Supreme Court, the seniority set out therein must be followed