At a public event on Friday, former Supreme Court judge Rohinton Nariman, who was a member of the Collegium before retiring in August 2021, directly confronted Law Minister Kiren Rijiju regarding the increasing criticism from the government towards the Collegium system for appointing judges to the higher judiciary.
In response to what he referred to as the Law Minister’s “diatribe” against the judiciary, Mr. Nariman emphasized the importance of accepting court decisions, regardless of whether they are deemed right or wrong. He also hits out Vice President Jagdeep Dhankhar without naming him for questioning the basic structure doctrine, but emphasized that the basic structure is an established principle that must be upheld. He added “Thank god it has come to stay”.
Regarding the government’s delay in acting on names recommended by the Collegium, Mr. Nariman stated that it is “deadly for democracy” and suggested implementing a 30-day deadline for the government to respond, after which the recommendations would be automatically approved.
The former judge said, “We have heard a diatribe by the Law Minister of the day against this process. Let me assure the Law Minister that there are two basic Constitutional fundamentals that he must know. One fundamental is, unlike the USA, a minimum of five unelected judges are trusted with the interpretation of the Constitution Article 145(3).”
“There is no equivalent in the USA. So minimum 5, what we call Constitution Bench, are trusted to interpret the Constitution. Once those five or more have interpreted the Constitution, it is your bounden duty as an authority under Article 144 to follow that judgement. Now, you may criticise it. As a citizen, I may criticise it, no problem. But never forget, unlike me … I am a citizen today, you are an authority and as an authority you are bound by that judgement, right or wrong,” he added.
The government is seeking a larger influence in the selection of judges, a process that has been controlled by the Supreme Court collegium, a group of the highest ranking judges, since 1993.
He stated that the current loophole in the Memorandum of Procedure (MoP), which enables the government to delay the selection of judges, is “deadly for democracy” in the country. He explained that this is because the government can wait for a change in the composition of the collegium, a group of senior judges responsible for selecting judges, in order to influence the selection process. He also noted that the government remains in power for multiple years, while the composition of the collegium changes frequently.
The former judge also emphasized the significance of the Kesavananda Bharati case, a landmark judgment by the Supreme Court in 1973. This case established the principle of the “basic structure” of the Constitution, which holds that while Parliament can make changes to any part of the Constitution, it cannot alter its fundamental principles. This serves as a limitation on the government’s executive and legislative powers.