SC Wants Govt to Curb Criticism, Claiming It is Final Arbitrator of Law

9 December, 2022 | Pranay Lad

SC Headlines

A three-judge bench led by Justice S K Kaul also ordered Attorney General R Venkataramani to encourage Union ministers who are opposing the Collegium system to contain themselves.

Unfazed by criticism of the Collegium method of selecting judges, the Supreme Court said on Thursday that within the Constitutional framework, it is the “ultimate arbitrator” of the law and that under current circumstances, the government “had to appoint” any names reaffirmed by its Collegium.

Attorney General R Venkataramani was also tasked by a three-judge panel led by Justice S K Kaul to counsel Union ministers who are criticising the Collegium system to restrain themselves.

Justice Vikram Nath, a member of the bench hearing the Advocates Association Bengaluru’s request for contempt of court proceedings against the government for failing to approve names repeated by the SC Collegium within the time frames specified by the court, said, “You must advise them to exercise some control.”

Justice Kaul said that “tomorrow people would argue fundamental structure is not part of the Constitution” in response to Supreme Court Bar Association President, and Senior Advocate Vikas Singh’s statement that “persons in constitutional offices were arguing SC does not have the power to perform the judicial review.”

The bench did not take names, but the remarks follow close on the heels of utterances by Vice President and Rajya Sabha Chairman Jagdeep Dhankar’s criticism of the SC for its 2015 judgement to knock down the statute to establish up a National Judicial Appointments Commission (NJAC) to choose judges.

The bench, which included Justice A S Oka throughout the hearing on Thursday, emphasised that courts are the ultimate arbiters of the law. “Our Constitution’s design mandates that the court serves as the final arbiter of legal issues. A law can only be passed by Parliament. However, the courts are able to review that. Everyone must abide by the rules established by this court. Even when the law has been established, other parts “may choose to take their own route,” according to Justice Kaul.

He stated that the Collegium system is the law of the land and that although the NJAC law was passed by the legislature, the Constitution’s requirements were not met. Today’s prevailing opinion is that. The legislation must be strictly upheld until it becomes the norm.

Justice Kaul expressed his unhappiness with the government’s recurrence of the same names for the appointment of judges, claiming that this gives the impression that the government will only choose like candidates.

“The Collegium has rejected proposals in several instances. The typical clearance rate is roughly 50% if you look at that, he stated. “Therefore, the government’s viewpoint is considered. In a system like this, unless certain facts have emerged for which the government sends back the suggestion, there cannot be any hidden grounds by which we can state that after adopting the government’s perspective, and the court’s clearance, it is barred. They have a right to carry that out. However, when it is restated and after seeing it, there is no passage that has been granted by the Constitution bench’s mandate.

You are submitting names twice, three times, how many times, he said. Which implies if you don’t find a name acceptable, you will not appoint a person, contrary to the ruling of the court.”

Additionally, the ruling included a “recommendation” for the Collegium, which Justice Kaul is a part of.

Attorney General R. Venkataramani was questioned by the bench on the government’s recent return to the Collegium of nine of 11 first-time recommendations and nine repetitions.

The bench stated that it had asked the A-G how “repeated names are sent back” within the current legal framework and that “sending back the second-time reiterated name would be in violation of this order.”

According to the court, Venkataramani’s remark “seems to infer that in two cases before, in such a circumstance, the Collegium opted to retract its recommendations and that may have given the government notion that such reiterated names may also be returned.” The Collegium would keep this idea in mind going forward, it was stated, but “we are not aware in what unique conditions were these names discarded.”

“The Collegium will now address that issue (of the returned files),” the bench declared.