The Supreme Court has issued a stern reminder to the government that while parliament can make a law – a point forcefully made by Vice President Jagdeep Dhankhar in Rajya Sabha yesterday — it was within the court’s power to “scrutinise” it. “Speeches made by the high constitutional functionaries in public, making comments on the Supreme Court Collegium, are not very well taken. You have to advise them,” the top court also said in the latest round of back and forth on the judges’ appointment issue.
A law declared by the Supreme Court is binding on all stakeholders, a bench of Justices Sanjay Kishan Kaul, Abhay S Oka, and Vikram Nath told Attorney General R Venkataramani during a hearing on the matter.
“Tomorrow, people will say the basic structure is also not a part of Constitution…. If every section of the society starts laying down which law is to be followed and which isn’t, then it will lead to a breakdown. If you want to bring some other law, you can always bring some law — if it stands (judicial) scrutiny,” said Justice Kaul.
Yesterday, Mr Dhankhar, in his maiden address in Rajya Sabha, raised the NJAC — the scrapped law on judicial appointments — and called the lawmakers to action. Underscoring the primacy of an elected government, he said a law passed by parliament was “undone by the Supreme Court”. It was, he said, a “severe compromise of parliamentary sovereignty and disregard of the mandate of the people”.
The Vice-President’s comments had bumped up the tussle over the judges’ appointment to a new level. So far, Central ministers – current and former – have commented on the issue, arguing that the government should have a role in selection of judges, which has been the domain of the Supreme Court Collegium since 1991. Even law minister Kiren Rijiju has expressed his reservations about the Collegium system.
The Collegium system is the “law of the land” which should be “followed to the teeth”, the top court said today. Just because some sections of the society express a view against the Collegium system, it will not cease to be the law of the land, the judges said.
The NJAC bill, passed in 2015, gave the government a role in judicial appointments. It was scrapped by a Constitutional Bench of the Supreme Court following petitions that contended that it would compromise the independence of the judiciary.
Justice JS Khehar, who led the five-judge constitution bench, said, “The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance”.
After the law was stuck down, then finance minister, the late Arun Jaitley, had said the Indian democracy could not be a “tyranny of the unelected”. Democracy, he said, would be in danger if the elected are undermined.