In a signal that it has no intention of giving up its offensive against the collegium system of judges appointing judges, the Union government said on Tuesday that nothing could stop Parliament from passing a new law to take the place of the recently struck down the National Judicial Appointments Commission (NJAC) Act and end the collegium’s supremacy.
Through Attorney-General Mukul Rohatgi, the Centre made an almost hostile note in the Supreme Court, exerting Parliament’s authority to pass “any law” to govern the criteria for, and process of, appointment of judges to the Supreme Court and the High Courts. The government was responding to the Supreme Court’s call for suggestions to better the collegium.
“Nothing in these suggestions should be construed as ‘estopping’ [preventing] Parliament or the Union of India from exercising such power in the first place,” Mr. Rohatgi said.
The Centre’s submission evoked no response from the Constitution Bench, which had struck down the NJAC law and revived the collegium in a majority verdict on October 16. Instead, Justice J.S. Khehar stressed the non-adversarial spirit of the current proceedings in which the judiciary and the government were “all on one side” to better the collegium system.
The government’s written note made it clear that its participation in the extended hearing on the issue should not be construed as a surrender to the October 16 verdict. “The Union of India reserves its liberty to take such action as it may decide fit … and nothing in these suggestions or participation in these proceedings ought to be construed as the Union of India being ‘estopped’ from such action,” it said.
Mr. Rohatgi pointedly said the Centre was participating [in the proceedings] solely because it shared the common feeling with the Bench that the collegium required reforms. An “independent, optimally transparent and accountable and publicly credible mechanism for appointment of judges” was the need of the hour, he said.
Noting that the collegium system had its source in a 1998 judgment from a nine-judge Bench, the Centre said the only way to realise Justice Kurian Joseph’s ideal of “glasnost [openness] and perestroika [re-structuring]” in the collegium was to refer the issue of reforms to a larger Bench. However, an undeterred Bench handed over the baton to the government and senior lawyers to kick-start the debate on ways to cast aside opacity in judicial appointments.
Deluge of suggestions
The Bench asked the government, the petitioners who challenged the NJAC and senior members of the Bar to filter the deluge of suggestions for “bettering” the collegium and compile them for the court to peruse on November 5, the next date of hearing. “The diversity of suggestions we received is tremendous and unimaginable,” Justice Khehar said.
Senior lawyer Arvind Datar and Additional Solicitor-General Pinky Anand were tasked with making the compilation. They would filter the suggestions on the basis of four parameters: how the collegium can be made transparent; the eligibility criteria to be fixed for persons to be considered suitable for appointment as a judge; a mechanism to receive and deal with complaints against judges without compromising on judicial independence; and whether a separate secretariat is required, and if so, its functioning, composition and powers.
“You have little time. Start right now,” Justice Madan B. Lokur said.
