'Law Ministry Acting More In The Vein Of An Errant Postman': M.P. Vivek K Tankha Writes To Law Minister [Read Letter]

Letter starts with a sad note with Tankha expressing dissatisfaction over the recent state of affairs and articulating the unease amongst the members of the bar and the public at large on the issue.

"I am writing to you with a heavy heart, given the recent state of affairs. As a member of Rajya Sabha from the State of Madhya Pradesh, and as a senior member of the bar, I must articulate the unease amongst the members of the bar and public at large on the issue of appointment of judges/Chief Justices."

Implement NJAC Judgment or go for review or reformation

Going two years down the line, letter traces the time when Tankha had initiated a debate in the Parliament on the disharmony of co-existence between the Collegium and the government. He shares in the letter how firm belief he has on pure constitutional principles that either there should be faithful implementation of the NJAC judgment [(2016) 4 SCC 1] of the Supreme Court or a review should be sought lawfully or once again process of reformation of the system should be started.

"Reform is necessary since the Collegium system at times looks very incestuous. But till reform takes place the judicial verdict must prevail," letter records.

Govt.'s Contumacy in not responding to the Collegium recommendation

Citing the example of disobedience, the letter reads:

"A glaring case of the government's contumacy is in ignoring or not responding to the Collegium recommendation dated 10^th May, 2019 in respect of Justice A.A. Kureshi of Bombay High Court to be appointed as Chief Justice of Madhya Pradesh High Court. The Collegium gave its recommendation in the following words, "Having regard to all relevant factors, the collegium is of the considered view that Mr. Justice A.A.Kureshi is suitable in all respects for being appointed as chief justice of the Madhya Pradesh High Court. The collegium resolves to recommend accordingly.""

No valid reason given for withholding the recommendation

Letter says that no valid explanation has been forthcoming from the Ministry for withholding the recommendation of Justice A.A.Kureshi and same compounds the issue of primacy of Collegium which is the law declared by the Supreme Court in the NJAC judgment.

It further goes on to say about the Gujarat Bar, which had occasion to judge the judge, as per newspaper reports and had registered its protest over government inaction to issue the appointment order, saying that it apparently smacked of "political mala fides."

Past Record of NDA government not encouraging on this issue

Letter says that past track record of the NDA government in this respect is not very encouraging. It says further that of the 94 names recommended by the CJI [as he then was] J. S. Khehar led Collegium, the government held back/returned 36 names for reconsideration. Similarly, letter notes, during CJI Dipak Misra's tenure, the Centre held back/returned 55 of 97 recommended for reconsideration.

Of late Ministry of Law & justice acting like an "errant post man"

Commenting on the recent statement of the Ministry of Law & Justice where it said it is not a "post office", letter reads that the Ministry of Law & Justice may legitimately feel that it is not a post office but of late it has been acting more in the vein of an "errant post man".

"We are governed by a Constitution of which the last word on interpretation lies with the Supreme Court. The Parliament in its wisdom can always initiate reform till it does not violate the basic structure of our Constitution propounded in Kesavananda Bharti case [AIR 1973 SC 1461]."

Independence of judiciary hallmark of the Constitution

Speaking of independence of the judiciary as one of the hallmarks of the Constitution, letter states:

"Dependence on judiciary for recommendations is the last word spoken on this issue by our constitutional court. Till this is not suitably reformed by way of a constitutional amendment, the role of the Law Ministry or the government gets limited by the verdict delivered in the NJAC judgment."

Letter states that withholding of the recommendation of the Collegium for nearly two long months in this case erodes the confidence of the people in the working of the Collegium system. More so, in a case of a judge whose track record is vouched for by the legal fraternity, letter notes.

Centre/Law Ministry has lost faith in the Collegium

Tankha says in the letter that all this gets to the inescapable conclusion that the Centre/Law Ministry has lost faith in the Collegium and its decision making ability. Such a message, he says, is a disastrous one and will only lead to erosion of reputation of the judiciary in the minds of the public at large. It is also indicative of the fact, he says, that the Ministry is choosing to take a public stand and go against the "Constitutional Scheme" for judicial appointments.

When Ministry & Collegium are at loggerheads, only sufferer is justice delivery system

Tankha says that such a state of affairs should not be allowed to continue and cogent steps must be taken to preserve the constitutional scheme and to instill confidence in the judiciary. He notes in the letter that when the Collegium and the Ministry are at loggerheads, the only sufferer is the justice delivery system.

Judicial independence inherent facet of Republic which needs to be preserved

He makes an earnest appeal in the letter to the government to either respect the decision of the Collegium and to complete the process of appointment or if it has valid reasons to present same to the Collegium for its consideration. He says that at any rate, such impasses need to be debated both in Parliament and also amongst the stakeholders, as judicial independence is an inherent facet of Republic, which needs to be preserved at any cost.

Click here to read the letter