'When There is Independence of Judiciary, There is Independence of Executive and Legislature Also': Law Minister Kiren Rijiju

The Law Minister was speaking on the issue of appointment of judges that had been raised by some members of Parliament in the debate yesterday. In the debate yesterday, members had raised the demand to re-introduce the National Judicial Appointments Commission to be re-introduced in Parliament. Mr. Pinaki Misra had said that "If the government had not dug its heels in, the Supreme Court would have accepted NJAC with a little bit tweaking. Even today it is not too late to go back with a fresh NJAC."

The Law Minister said that we have to keep in mind the Constitutional provisions and the changes that have been made thereafter while discussing this issue. He further added:

"In other places consultation is consultation and concurrence is concurrence but in the case of appointment of judges, a Constitutional Bench of the Supreme Court has said consultation means concurrence and thus the Collegium system was established."

He added that even before the Collegium System was developed, stellar judges had been appointed to the Supreme Court, citing the examples of Justice Krishna Iyer, H.R.Khanna, Justice Vivian Bose, Justice Patanjali Sastri and Justice S.R.Das, among others.

At this point, the Law Minister said that there was another issue which had happened recently which ought to be considered by the House. Referring to the M/s PLR Projects Pvt. Ltd v Mahanadi Coalfields Case, wherein certain orders were issued this year, Mr. Rijiju added:

"In the Mahanadi Case this year, Supreme Court's Bench of Justice Bobde, Justice Sanjay Kishan Kaul, and Justice Bobde has come out with a new direction- in case of a reiteration, the government has to appoint within 3-4 weeks. It was made mandatory that the government has to appoint judges those which are reiterated case."

In the Mahanadi Case in April this year, Supreme Court had laid down the timeline for the appointment of High Court judges.

Going on, he added:

"If these kind of judgments keep coming from Supreme Court and High Courts…but we will have to go back to the Constitution and revisit the provisions of the Constitution and see."

He further added that the time-limit was not given in the Memorandum of Procedure governing appointment of judges. He said: 

"The Memorandum of Procedure does not specify that appointments have to be made in a limited time period. That has come up in the Mahanadi case for the first time. The larger question is, if it is not mentioned in the MoP then we have to take a call."

At this point, a Member sought the government's opinion on National Judicial Appointments Commission. To which the Law Minister responded:

"We respect the judiciary. My words should not be construed as challenge to the independence of judiciary. But I also believe that when there is independence of judiciary, there is independence of executive and legislature also…When an Act passed by the Legislature is struck down by the Supreme Court, it is a larger issue for all of us to consider and discuss."

He added that the issue maybe taken up at a later point since the House is considering a very specific case at this point. He aldo added that the process of appointment is going on smoothly and there are no efforts from govternment's side to slow down the process. "Allegations that govt is stopping some names recommended by Collegium, are not correct," he added.

In a later part of the debate, members posed questions to the Law Minister that since by way of this Bill the government is "clarifying the legislature's intent", whether it would do the same in case of NJAC where the Act was struck down by the Supreme Court for violating the Basic Structure of the Constitution.

Mr.Rijiju responded that it would not be appropriate for him to give any assurances in the House without having consultations with other stakeholders in the issue. Nevertheless he added:

"A number of retired judges and members have Supreme Court Bar Association have written to me that the present Collegium System is not right, not transparent or accountable. It doesn't justify the intention with which certain provisions were inserted in the Constitution. There have been many suggestions which have been made along these lines including the for re-introduction of the NJAC system."

However, he quickly added that this was a sensitive issue and expressed his inability to give any commitment at this point.

The Lok Sabha was debating the SC and HC (Salary and Conditions of Service) Amendment Bill, 2021 which was ultimately passed today.