Says Parliament can enact a law but power to scrutinise it lies with court
The Supreme Court on Thursday said that the scheme of the Constitution requires it to be the final arbiter of law and while the Parliament has the right to enact a law, the power to scrutinise it lies with the court, as it heard a contempt plea against Centre for breaching the timeline for judicial appointments.
The top court also made it clear to the Centre that the existing Memorandum of Procedure (MoP) for appointment of judges to the apex court and the high courts has been settled and should be complied with.
It also observed that Centre sending back recommendations reiterated by the collegium is in breach of its judicial directions.
The top court pointed out there was an instance where the names were sent back after 2 years, and stressed that government views are taken into account when judges’ names are recommended for appointment.
A bench, headed by Justice Sanjay Kishan Kaul and comprising Justices Abhay S. Oka and Vikram Nath, took objection to the Centre citing opinions of certain judges against the collegium system, as an excuse to delay clearance to the recommendations made by the collegium.
It said that once the aspect of the MoP is settled by the judgment of a constitution bench of the top court, the Centre cannot get over the issue by referring to observations made by two judges, former Chief Justice Ranjan Gogoi and Justice J. Chelameshwar.
The bench told Attorney General R. Venkataramani: “You have conveniently picked up some views of the judges and included that. How can that be done?”
“You may want some changes but in the meantime, the collegium along with existing MoP has to work. Now it looks just like a blame game.”
The bench added that the MoP issue is over now and asked, is it logical to latch on to the observations made by 2 judges when there is a Constitution Bench decision?
On the aspect of MoP, Justice Kaul orally observed that the government can make suggestions but it cannot re-agitate the issue of MoP that has been settled by a constitution bench judgment. He told the AG that 2 out of 7 judges observed that some fine tuning of procedure is required, but in the meantime, the collegium system coupled with the MoP is to be followed.
The bench also took objection to the government’s stand that the new MoP is yet to be finalised. “You say Justices Ranjan Gogoi and Chelameshwar said that MoP needs a relook. But then so what… even if two judges opine something… how does it change the collegium decision,” the bench queried the AG, noting that MoP was settled in 2017.
On the aspect of recommendations reiterated by the collegium, the bench told the AG: “Sending back second time reiterated names is a breach of our earlier direction.”
It noted that the AG submitted that in such a scenario earlier, such sent back names were actually dropped. “We don’t know why the names were dropped,” said the bench.
The bench said according to the apex court judgment in the second judges’ case, once names were reiterated by the collegium, they have to be confirmed.
The bench told the AG, “Once the collegium takes a view you have a right to object within a reasonable period of time… you have to enforce the law as it exists today.”
It further added that Parliament can make laws but its scrutiny lies with the apex court and pointed out that the law passed by the Centre on setting up the National Judicial Appointment Commission (NJAC) could not pass muster.
The bench has scheduled the matter for further hearing in the first week of January 2023.
The top court was hearing a contempt petition filed by Advocates Association of Bangalore against Centre breaching the timeline for judicial appointments.