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Thursday, February 9, 2023

SC: Collegium system for the Appointment of Judges must be followed

The Supreme Court on Thursday said the collegial system of appointment of judges is the law of the land and comments against it are “not well received”.

The Supreme Court observed that any law it declares is “binding” on all parties concerned and the collegium system must be followed.

The Supreme Court was hearing a matter regarding the Centre’s alleged delay in clearing the names recommended by the collegium for appointment as judges of the constitutional courts.

As the government functionaries’ comments on the Supreme Court collegium were “not well received”, a bench headed by Justice S K Kaul asked Attorney General R Venkataramani to advise the government on the matter.

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The collegium system has become a major flashpoint between the Supreme Court and the central government, with the mechanism of judges appointing judges attracting criticism from various quarters.

Union Law Minister Kiren Rijiju launched a fresh attack on November 25, saying the collegium system was “alien” to the Constitution.

The bench, also comprising Justices AS Oka and Vikram Nath, said it expected the Attorney General to advise the government that the legal principles laid down by the apex court are followed.

It noted that 19 names recommended by the collegium were sent back by the government recently.

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“How will this ping pong battle go?” asked the bench.

“Until the collegiate system is here until it is supported, we must enforce it. If you want to bring another law, nobody is stopping you from bringing another law,” it said.

The Supreme Court said that if a section of society starts deciding which law to follow and which not to follow, there will be a breakdown.

“When you make a law, you expect the courts to enforce it unless the law is struck down,” the court said.

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“In conclusion, we can only say that the scheme of the Constitution stipulates that the court is the final arbiter of legal status. Parliament has the power to pass laws. However, this is subject to review by the courts,” he said.

The bench said that it is necessary for everyone to follow the law that has been laid down.

“Any law declared by this court is binding on all parties involved. That is the only signal I want to send,” Justice Kaul observed.

The court said what “disturbed” the court was that there were many names pending for months and years, including some that had been repeated by the collegium.
He said that when the apex court collegium sends names and the apex court collegium clears them, it has to keep in mind several factors including seniority.

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The panel said the verdict of the constitutional senate on the collegial system should be respected.

“Meanwhile, the collegial system associated with the Memorandum of Procedure (MoP) must function as it is, subject to any changes that need to be made,” the bench said.
The court adjourned the case for further hearing on January 6.

On November 28, the Supreme Court expressed dismay over the Centre’s delay in clearing the names recommended by the collegium for appointment as judges of the higher judiciary, saying it “effectively frustrates” the mode of appointment.

She said a three-judge bench of the apex court had set deadlines within which the appointment process must be completed. These timelines were said to need to be met.

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Justice Kaul observed that the government appeared to be unhappy with the fact that the National Judicial Appointments Commission (NJAC) Act had not been passed, but that could not be a reason for disobeying the laws of the land.

In its 2015 verdict, the Supreme Court struck down the NJAC Act and the Constitution (99th Amendment) Act, 2014, which led to the revival of the Collegium system of existing judges appointing judges to constitutional courts.

The Supreme Court was hearing a plea alleging “willful disobedience” of the time frame set by the apex court in its order on April 20 last year to facilitate timely appointments.

On November 11, the Supreme Court expressed displeasure over the Centre’s delay in clearing the names recommended for appointment as judges, saying that keeping them pending was “something unacceptable”.

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It has notified the Union Law Ministry’s Secretary (Justice) and Additional Secretary (Administration and Appointments) to respond to the plea.

A petition filed by the Bengaluru Bar Association through lawyer Pai Amit raised the issue of “extraordinary delays” in the appointment of judges in high courts as well as segregation of names, which “harms the cherished principle of judicial independence”.

It refers to 11 names that were recommended and later repeated.

The apex court, in its order in April last year, said the Center should appoint judges within three to four weeks if the Collegium unanimously reiterated its recommendations.

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