Supreme Court warns Centre of ‘breakdown’ : Court sees constitutional crisis in row over judges

R. Balaji   |   TT   |  New Delhi   |   09.12.22  :  The  Supreme Court on Wednesday rapped the Centre for the continuing delay in clearing the appointments of judges to various high courts, warning of a constitutional “breakdown” if everyone disobeyed laws that they found inconvenient.

A three-judge bench noted that the government’s recalcitrance stemmed from the apex court’s quashing in 2015 of the National Judicial Appointments Commission (NJAC) that gave the government a bigger say in judges’ appointments, now the sole province of the apex court collegium.   

“We keep saying that it appears this situation arises because the NJAC did not pass  constitutional muster. Why should courts pass laws that sections of society object to? Because that is the law of the land.… There are sections in society who do not agree with the laws made by Parliament. Should the court stop enforcing such laws on that ground?” the bench said.

“If every section of society starts laying down which law is to be followed and which isn’t, then it will lead to a (constitutional) breakdown. If you want to bring some law, you can do it and stands (judicial) scrutiny,” Justice Sanjay Kishan Kaul told attorney-general R. Venkatramani and solicitor-general Tushar Mehta, who were representing the government.

The bench, which included Justices A.S. Oka and Vikram Nath, also expressed strong displeasure at the increasing attacks on the collegium system by high functionaries in the government and asked the attorney-general to convey that such comments must stop.

“Speeches made by high constitutional functionaries in public, making comments on the Supreme Court collegium, are not very well taken. You have to advise them,” Justice Nath observed, without naming anyone.

Vice-President and Rajya Sabha chairperson Jagdeep Dhankhar had in his address in the Upper House on Wednesday assailed the collegium system.

Union law minister Kiren Rijiju had recently said the collegium system was opaque and involved “intense politics”.

The bench was dealing with a contempt petition filed by the Bengaluru Advocates Association against the Centre for failing to clear the collegium’s recommendations even after reiteration, which the law says is binding.

The Supreme Court Bar Association and the NGO Common Cause have moved similar petitions.

Venkatramani referred to instances where the collegium had itself dropped certain candidates after recommending and reiterating their names. He said these examples justified the government’s plea for reconsideration of names.

Justice Kaul brushed the argument aside, saying two or three isolated instances did not give the government the licence to ignore constitution bench judgments that had reaffirmed that the collegium’s recommendations were binding.

Advocate Prashant Bhushan, appearing for Common Cause, referred to the stalemate created in 2018 when the government for several months refused to clear the elevation of Justice K.M. Joseph to the apex court.

Justice Joseph is now a member of the Supreme Court collegium. Mehta immediately objected, saying Bhushan could not convert the hearing into a public debate by raising the names of judges.

“He is taking names of judges; this needs to be stopped,” Mehta said, prompting Justice Kaul to retort: “A lot of things need to be stopped. A judgment of the constitution bench has to be adhered to.”