• The Supreme Court on Monday linked the bitter failure of the National Judicial Appointments Commission (NJAC) to the government’s willingness to “cross some Rubicons” and take on the judiciary by delaying Collegium recommendations.
  • The top court had struck down the NJAC, which gave the government an equal say in judicial appointments, in 2015. The judgment had revived the Collegium system of judicial appointments.
  • “There appears to be an unhappiness in the government of the fact that NJAC did not muster the constitutional mandate… That cannot be the reason to not comply with the law of the land,” a Bench of Justices Sanjay Kishan Kaul and A.S. Oka.
  • The hearing coincided with a fresh salvo from Law Minister Kiren Rijiju, a relentless critic of the Collegium system. Mr. Rijiju, in an interview, reportedly dared the judiciary to “issue its own notifications” of appointments if it thought the government was sitting on Collegium recommendations.

Anguish over NJAC behind posting delays’

  • “Let them give the power to us then, we have no difficulty… When somebody high up says ‘let them do it’, we will do it ourselves… This [Rijiju’s remarks] came from somebody high enough, it should not have,” Justice Kaul shot back when apprised of the Law Minister’s comments by the Supreme Court Bar Association president, senior advocate Vikas Singh, in court.
  • The hearing on Monday marked a new high in the tensions simmering for the past few weeks between the judiciary and the government over appointments.
  • Rijiju has been criticising the Collegium system in several public fora. The court had responded by accusing the government of using silence and inaction as a ploy to compel the withdrawal of consent by eminent persons considered for judgeships in the constitutional courts.
  • On Monday, Justice Kaul told Attorney-General R. Venkataramani that the government was “effectively frustrating the method of appointment”.
  • Names have been pending for a year and a half. Some of them had been originally recommended way back in 2019 and still not cleared by a government which remains incommunicado.
  • The court accused the government of picking and choosing names from the Collegium list. “What happens is this completely destroys the seniority.
  • The Collegium while sending names keeps many factors in mind,” Justice Kaul said. The court said it was plainly “anguished” by the government’s attitude.
  • “It [government] is crossing some Rubicons by keeping these names pending like this… It cannot go on like this… We went on thinking that things will improve, that it will improve… But for the past two months, everything has come to a complete standstill, whether it is appointments to the High Courts or to the Supreme Court,” Justice Kaul observed.
  • The court said 20% of the judicial posts in High Courts were vacant. Justice Kaul said Chief Justices of several High Courts have complained about lawyers unwilling to accept invitations to the Bench because of the uncertainty posed by the government’s inaction. Mr. Singh said the court should issue contempt notice against the government.
  • “We kept our patience today because the A-G appeared… Timelines [for judicial appointments] have gone completely haywire, there have been many aggravating circumstances after that… Don’t make us take decisions on the judicial side on this,” Justice Kaul and Oka said told Mr. Venkataramani.


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