The Supreme Court on Thursday took an unfavorable view of the comments made by government functionaries about the Collegium system of appointing judges to the High Courts and the Supreme Court.

A bench of Justices Sanjay Kishan Kaul, Vikram Nath, and Abhay S Oka said that the comments are not well taken, and asked Attorney General for India R Venkataramani to "advise them" (such government functionaries).

The Court specifically said that as per the scheme set out in the Constitution of India, while the parliament has the power to enact a law, the power to scrutinize such law vests with the courts.

"Scheme of our constitution requires our court to be the final arbiter of the law. Parliament has the right to enact a law but the power to scrutinize it lies with the court. it is imp that law laid down by this court is followed else people would follow the law which they think is correct," the Court said.

These observations were made in the context of recent statements by Vice President Jagdeep Dhankar, who had said that Constitutional courts quashing changes made by the parliament to the Constitution does not happen in any other democracy.

He had particularly cited the example of the National Judicial Appointments Commission Act, stating that the same was passed unanimously in Lok Sabha and unopposed in Raya Sabha; yet it was struck down by the top court.

On November 28, 2022, Union Law Minister Kiren Rijiju also termed the collegium system as 'alien' to the Constitution of India.

He said that the Central government cannot be accused of 'sitting over recommendations' made by the Collegium and the judges' body cannot expect the government to simply sign off on all the recommendations made by it.

The Supreme Court bench of Justices Sanjay Kishan Kaul, Abhay S Oka, and Vikram Nath, however, took objections to the remarks today.

"Let people not believe that they will follow a law which they believe is correct. this has larger ramifications. Comments on Supreme Court collegium by the govt functionaries etc is not well taken, You have to advise them, Attorney General," Justice Nath said.

"Any law declared by this court is binding on all the stakeholders," Justice Kaul weighed in

The Court was hearing two pleas - one from 2018 filed by the Centre for Public Interest Litigation (CPIL), and one filed by the Advocates Association Bengaluru that stated that the Central government's failure to process the names that the Supreme Court Collegium recommended for appointment as judges was in direct contravention of the Second Judges case.

At the last hearing, the bench remarked that the government picking and choosing persons from the names recommended was affecting the seniority of judges.

"Getting successful lawyers to join the profession is difficult in a monetary aspect. But another reason is the tortuous process of appointment and the best first-generation lawyers have declined to be part of the system citing this. This is the grim reality", the Court had remarked.

The top court had also said that the government should not hold names back without expressing its reservations, adding that good people must join the bench and the timeline must be adhered to unless there was an exception.

Earlier, the apex court had sought a response from the Union Law Secretary in the plea.

Pertinently, the bench had remarked that keeping the names on hold was "becoming some sort of a device to compel these persons to withdraw their names".

In its order today, the Court highlighted the delay by the government in clearing Collegium recommendations and how it was affecting the seniority of judges.

"When recommendations are made by SC collegium, the aspect of seniority has to be maintained. This is another aspect govt must look at. Attorney General (AG) assures us that he will look at it. We expect AG to play the role of a senior most law officer," the Court said.

It then posted the case for further hearing next week.

References:

barandbench.com