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Supreme Court restores Collegium, strikes down NJAC

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In the wake of the judgement of the National Judicial Appointments Commission (NJAC) that restored the Supreme Court collegium, Union Law Minister Ravi Shankar Prasad commented that the verdict clearly highlighted the judiciary’s distrust in the capability of the Law Minister and the Prime Minister to appoint a “fair judge.”

“The people of India trust the Prime Minister with the obligation to secure the unity and integrity of India. As I once said in the Parliament, the Prime Minister possesses the nuclear button – that’s how much the people trust him. The Prime Minister through his Ministers can do so much work, yet the Prime Minister through the Law Minister cannot be trusted to have a fair judge appointed is a question. Some day we trust the judiciary and the polity of the country will look into this,” the Minister said in his address at the valedictory function of the Law Day celebrations.
Prasad said a “very loaded statement” has been made by the Supreme Court in the NJAC judgment if it thinks that the mere association of the Law Minister in the Commission would lead to appointments of a “doubtful” character.

Though repeatedly saying that the government respects the NJAC verdict, Prasad asked why doubts were raised in the judgment about the Prime Minister’s role in appointing a fair judge when the Constitution had already given him the “principal player” role in the appointments of the President, the Vice-President, the three Armed Forces chiefs, the Chief Election Commissioner and other constitutional bodies.

Under the previous Article 124A of the Constitution that is currently struck down, the Law Minister was an ex officio member of the NJAC and the Prime Minister was part of the three-member panel which nominated the two eminent persons to the NJAC, which was meant to give the political class an equal say in judicial appointments to the Supreme Court and the High Courts.

Prasad cited the case of the jailed Calcutta HC judge C.S. Karnan as an example of how the Supreme Court collegium has failed. “The Supreme Court sent a sitting judge (Karnan) to jail for contempt. He was an appointee of the collegium. When I went through the records, I found to my dismay that the then collegium had found him well-versed in all branches of law… Obviously, he was not well-versed in contempt law,” Prasad said. “The Karnan case should compel the collegium to do an “audit” of its performance. Since 1993, the collegium has appointed judges. Is an audit required on ‘what have we lost? What we have gained? Why did we make such appointments?’” Prasad asked.

The collegium ceased to exist with the coming of the NJAC. The 20-year-old collegium system prescribes appointment of judges by a panel comprising five senior-most judges of the Supreme Court and high courts, with the power to confirm appointments despite resistance, if any, from the government.

The Bench’s move to bring back the collegium was the subject of a blog by Union Finance Minister Arun Jaitley too. “Having struck down the 99th Constitutional Amendment, the court decided to re-legislate. The court quashed the 99th Constitutional Amendment. The court is entitled to do so. While quashing the same, it re-legislated the repealed provisions of Article 124 and 217 which only the legislature can do. This is the third error in the judgment,” he wrote on Facebook.

The SC in its defence said that the decision to revive the collegium was born out of the sheer necessity to avert “chaos” and not to create a situation in which the President may become a “tyrant” by assuming absolute powers to appoint judges on his own.

Chief Justice of India Dipak Misra in his response to Prasad’s remark said that the judiciary reposed as much trust in a popularly elected PM as the public does. “The Prime Minister is the repository of constitutional trust. Trust is reposed in the Prime Minister. That is the language of the Constituent Assembly and we are not going to add anything. We also repose the same trust in the Honourable Prime Minister,” Chief Justice Misra said.

In the gathering at Vigyan Bhawan was former Chief Justice of India J.S. Khehar, who authored the majority judgment in the NJAC case in October 2015.

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