Sitting On Names Recommended By Collegium Deadly, Against Democracy: Retired Justice RF Nariman Says SC Should Set Strict Deadline For Collegium Resolutions

The Supreme Court of India should constitute a five-judges bench to tie all loose ends of the Memorandum of Procedure for the appointment of Judges, and lay down a strict deadline for the government to respond to the collegium resolutions or else it should be taken that the government has nothing to say, and appointments should be done, Justice (Retd) Rohinton Nariman said on Friday.

Justice Nariman also said that the Supreme Court Judgment on collegium may be right or wrong but the law Minister Kiren Rijiju was bound to accept it. Addressing the Vice President Jagdeep Dhankar’s comments against the “basic structure doctrine” laid down in the Kesavananda Bharati judgment and two attempts after that in the Supreme Court to get the judgment undone, Justice Nariman said it was here to 'stay.'

Justice Nariman was delivering the 7th MC Chagla Memorial lecture on "A Tale of two constitutions. India and the United States."

 "To end this talk, it is important to remember that you may have forged for yourself an excellent Constitution but if ultimately those who are the institutions under it, malfunction, there is very little you can do. Constitution should be written off.."

Justice Nariman said that sitting on names was very deadly, and against democracy.   

"And that Constitution Bench should, in my humble opinion, lay down once and for all that once a name is sent by the collegium to the government, if the government has nothing to say within a period, let’s say 30 days, then it would be taken that it has nothing to say…This sitting on names is very deadly against democracy in this country."

"Because what you are doing is you are waiting out a particular collegium to hope that another collegium changes its mind. And that happens all the time because you the government are continuous, you carry on for five years – at least. But the collegiums that come, have a huge attrition rate. So this is one very important thing that a judgment of our court should lay down," Justice Nariman, a former judge of the Supreme Court, said.

He also said that this constitution bench should lay down that once a name is reiterated, there should be the appointment of judges within a fixed period.

“.. whether at the end of 30 days or at the end of reiteration, the appointment also should take place within a fixed time period, whatever time period is. Ultimately, as I told you earlier, it is how a Constitution is worked, and if you don’t have independent and fearless judges, say good bye. There is nothing left. As a matter of fact, according to me, if finally, this bastion falls, or were to fall, we will enter the abyss of a new dark age, in which Laxman's (late cartoonist R K Laxman) common man will ask himself only one question – if the salt has lost its savor, wherewith shall it be salted?”

Justice Nariman also said that it is the law minister’s bounden duty to accept the judgements of the court, which includes the basic structure.

“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 USA. So minimum 5, what we call Constitution Bench, are trusted to interpreted 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 judgment. 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 judgment, right or wrong.”

He also addressed Vice President Jagdeep Dhankahr’s comments against the “basic structure doctrine". “From 1980 till date, this extremely important weapon in the hands of the judiciary has been used n number of times as one of the extremely important checks and balances to check an executive when it acts beyond the Constitution. And the last time it was used was probably to strike down the 99th amendment (of the Constitution) which was the National Judicial Appointments Commission Act,” Justice Nariman said.

Referring to the Vice President without naming him, he added, “let us remember when we speak of the basic structure doctrine that it is a doctrine which has been used by minority judges. It is a doctrine that was sought be undone twice and that over 40 years ago. Since then nobody has said a word about it, except very recently. So let us be very clear that this is something that has come to stay and speaking for myself, thank god it has come to stay".