While the tussle between the centre-right and the judiciary continues, with many in government including the Minister of Law criticizing the apical court for its 2015 verdict that struck down the law of the National Judicial Appointments Commission (NJAC), a panel of Sanajay judges Kishan KaulAbhay S Oka e Vikram Nat he said the collegium system is the law of the land and the government is free to bring in a law to replace the system, but until then it must follow this procedure. He said it would lead to the collapse of the system if the government itself broke the law.
Noting that comments made on the Supreme Court collegium by government officials “are not welcome,” the panel also advised that public posturing on this issue could be avoided.
“As long as the boarding school system exists, we have to apply it. You can bring the law to replace the system and no one is stopping you. But until then you must follow the law that exists today and our job is to enforce the law as it stands today… …Any law declared by this court is binding on all parties concerned,” said the bench .
The court said that no one, including the government, is allowed to choose which laws and rules to follow and that everyone is bound by all the laws in the land. The panel said it was problematic that the government had sat on the recommendations of the apex court collegium for years despite the fixed timeline and was also selective in clearing names.
“There are sections in society that disagree with the laws made by Parliament. Should the court stop enforcing such laws on this ground? If people decide which law to follow and which law not to follow, there will be a break,” the court said, making it clear to the Center that it has no choice but to abide by the collegium system that was formulated through the judicial order and was in place since the early 90s.
The court was particularly incensed by the Center’s decision to defer names that were reiterated by the collegium. As per the ruling of the apical court, the government is required to clarify the names reaffirmed by the collegium. The court noted that the Center recently sent back 19 names, of which 10 were reiterated by the collegium.
“There can be no hidden reason to block names unless some new facts come to light… There is no other step for the government when names are repeated and the government has to name. It can’t be that there is no nomination in case of names he doesn’t like… What has upset us is that some repeat cases have been pending for some time… and the ping-pong battle is ongoing,” he said the bench remembering that the names are returned despite having been confirmed by the collegium.
Calling the brawl between the judiciary and the Center over the appointment of judges an “endless battle”, the panel said it was a “completely avoidable situation” and asked the Attorney General K Venkataramani to advise the government to follow the law. Referring to the Center returning the names after being recommended two and three times, the AG said the apex court collegium had in two cases accepted and dropped the names although they had been reiterated.
As the AG said the delay in the appointment was also caused by the fact that the high courts are not sending recommendations in time and the issue of finalizing the memorandum of procedure (MoP) was pending between the Center and the apex court , the college said the government was indulging in the “blame game”.
The court said the MoP has already been finalized and just because the Center wrote a letter asking for some changes in procedure didn’t mean the matter was pending.
Concluding the day’s hearing, the panel said it had used moderate language in passing and hoped the AG would be able to persuade the government to follow the law. The court adjourned the case for a hearing until Dec. 16 and clarified it will keep the matter on hold until the matter is resolved.
The AG said the sanctioned strength of high court judges is 1,108, but the workforce is 776, with 332 vacancies. He said the high courts have made 146 recommendations which are under consideration by the government and the Supreme Court has not recommended names for the remaining 186 vacancies, which make up 56 per cent of vacancies.
