There has been a clash between the Supreme Court and the Central Government once again. The matter is related to the appointment of judges. The Supreme Court has expressed displeasure over the delay in the appointment of judges in the High Court.
Justice SK Kaul and Justice AS Oka said that the three-judge bench had fixed the timeline for the appointment of judges and it should be followed. Justice Kaul said that it seems that the government is unhappy with the repeal of the National Judicial Appointments Commission (NJAC) law, but this cannot be a reason for not following the law.
During the hearing on Monday, the Supreme Court asked Attorney General R.K. Told Venkataramani that the ground reality is that the government is not accepting the names sent by the collegium. How does the system work? We have already expressed our concern.
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However, this is not the first time that the Supreme Court and the Central Government are at loggerheads over the appointment of judges. Even before this, the Supreme Court and the government have come face to face regarding the appointment of the Judicial Appointments Commission and Justice KM Joseph.
What is the whole matter this time?
The bench of Justice Kaul and Justice Oka, which is hearing the petition, has been filed on behalf of the Bangalore Advocate Association.
This petition was filed last year. It has been said in this petition that despite the recommendations of the Supreme Court Collegium, 11 names have not been approved by the Central Government.
In this petition, the central government has been accused of ‘deliberate disobedience’ of the order of the Supreme Court. It has also been said in this that some names are pending with the government for one and a half years.
It states that the collegium had recommended 11 names and these names were also reiterated, yet the central government did not approve them.
What did the Supreme Court say?
The Supreme Court has expressed displeasure over the delay in approving names for the appointment of judges. Earlier on November 11, the court had also issued a notice to the central government and said that delay in granting approval is not ‘acceptable’.
Justice Kaul said, ‘How does the system work? We have already expressed our anger. It seems to me that the government is unhappy with the cancellation of NJAC, but this cannot be a reason to follow the law.
Attorney General Venkataramani, appearing for the government, said that the central government has discussed the notice issued on November 11 with the secretary-level officers and the answer will be given soon.
The Supreme Court has fixed December 8 as the next date for hearing in this matter.
What did you say on Kiren Rijiju’s statement?
Union Law Minister Kiren Rijiju has raised questions on the collegium. These statements were also placed before the Supreme Court.
On this, the Supreme Court said, ‘We usually ignore media reports, but these statements have been given by a person sitting at a high level and this should not have happened.’
What did Rijiju say?
In a recent program, Kiren Rijiju had said that the collegium system has come from abroad and it is different from our constitution. He had said that tell under which provision the collegium system has been created.
Rijiju had said, ‘If you expect the government to approve the names suggested as judges just because they are recommended by the collegium, then what is the role of the government in this?’
– He also said, ‘Don’t say that the government is sitting with the files or has not sent the files at all. You appoint yourself. You do everything yourself. The system doesn’t work like this. Judiciary and executive will have to work together.
Earlier last month also in a program, Rijiju had said that people are not happy with the collegium system and it is the job of the government to appoint judges under the constitution.
During this, he had said, ‘Till 1993, the Law Ministry used to appoint all the judges on the advice of the Chief Justice of India. At that time we had very eminent judges. It is clear in the Constitution that the President will appoint judges and this means that the Law Ministry will do this work on the advice of the Chief Justice.
Rijiju says that the Supreme Court had formed the collegium by its decision. He said that there are many flaws in the collegium system and people are raising questions that there is no transparency in it. Apart from this, there is no accountability for this.
Raising questions on the collegium system, Kiren Rijiju’s sharpest comment was that there is no other country in the world except India, where a judge can make his brother a judge.
What is collegium?
The collegium was formed in 1993. This is a committee of five judges of the Supreme Court. Its chairman is the Chief Justice of India.
The collegium decides on matters related to the appointment and promotion of judges. Judges in the High Court and the Supreme Court are appointed only on the recommendation of the collegium.
For this, the Collegium sends the name to the Central Government, which the Government sends to the President. After getting approval from the President, the notification is issued and the judge is appointed.
Usually the government accepts the recommendations of the collegium. But sometimes it asks to reconsider some names. However, if the collegium again suggests the same name, the government is bound to approve it.
Earlier in May 2018, the Central Government had asked to reconsider the name of Justice KM Joseph’s appointment. At that time Justice KM Joseph was the Chief Justice of the Uttarakhand High Court and the collegium had recommended that he be appointed as a Supreme Court judge.
What is NJAC Is?
To remove the collegium system, the central government had brought a law. Under this law, the National Judicial Appointments Commission (NJAC) was formed, whose job was to appoint judges.
Under the law, the chairman of this commission would have been the Chief Justice of the country. Apart from him, it was to have two senior judges of the Supreme Court, Law Minister and two well-known personalities.
These two celebrities were to be selected by a three-member committee, which included the Prime Minister, the Chief Justice and the Leader of the Opposition in the Lok Sabha.
The interesting thing in this was that the name of a judge could be recommended only when 5 members of the commission agreed on it. If two members do not agree on the appointment of someone, then that name will not be recommended.
In October 2015, the Supreme Court struck down this law and termed the Judicial Appointments Commission as unconstitutional. At that time, the Supreme Court had said that this commission interferes in the functioning of the judiciary.
How often does the government and the Supreme Court clash?
– November 2022: The Central Government has asked the Collegium to re-consider 20 files related to the appointment of judges in the High Court. These files have been returned on 25 November. Of these, there are 11 new cases and 9 cases have been repeated. In these cases, there is also a name of advocate Saurabh Kirpal, who has been recommended for appointment as a judge in the Delhi High Court. Advocate Kirpal is the son of former CJI BN Kirpal.
May-June 2018: In January, the collegium had recommended the elevation of Indu Malhotra and KM Joseph as judges to the Supreme Court. The government had also asked to reconsider their names. In May, the government approved the name of Indu Malhotra, but asked to think again on the name of Justice Joseph. However, later the government also approved the name of Justice KM Joseph.
– August 2016: In February 2015, the Supreme Court collegium recommended names for the appointment of 74 judges, but even after more than one and a half years, the central government had not approved them. In August 2016, the Supreme Court had clearly said that if forced by the government, the court would not hesitate to confront it.
– October 2015: After the Modi government came to the center, the National Judicial Appointments Commission (NJAC) was formed for the appointment of judges. Its constitutionality was challenged in the Supreme Court. The Supreme Court called it unconstitutional and canceled the commission. The government’s argument was that it has been passed by the Parliament and 20 Assemblies have also passed it, so the court cannot interfere.