Amid the Centre’s growing attack on the Supreme Court’s collegium system of appointments to the higher judiciary, former Supreme Court Justice Rohinton Fali Nariman. Who himself was part of the collegium before retiring in August 2021—took on Law Minister Kiren Rijiju at a public event on Friday. Calling his public comments on the judiciary a ‘diatribe’, Mr Nariman reminded the law minister that it was his ‘obligatory duty’ to accept the court’s judgments whether ‘right or wrong’. Without naming him, he also took on Vice President Jagdeep Dhankhar, who questioned the basic structure doctrine, saying that the basic structure. Was here to stay and “thank God it has come to stay”.
On the Center “sitting” on the names recommended by the collegium. He said it was “fatal for democracy” and suggested a 30-day deadline for the government to respond, or the recommendations would be automatically approved.
“We heard a diatribe by the Law Minister of the day against this process. I assure the Law Minister that there are two basic constitutional fundamentals that he must know. One fundamental is, unlike the United States, a minimum of five unelected judges. Interpretation of Article 145(3) of the Constitution Trustees. There is no equivalent in the United States. So a minimum of 5, what we call Constitution Benches, are trustees to interpret the Constitution. Once those five or more interpret the Constitution, it is your binding duty as an authority under Article 144 to follow that judgment. Done. Now, you can criticize it. As a citizen, I can criticize it, no problem. But never forget, unlike me…
The government has been pushing for a greater role in the appointment of judges, which since 1993 has been the domain of the Supreme Court’s collegium, or panel of senior judges.
Vice-President Jagdeep Dhankhar also supported the Centre, questioning the basic structure doctrine and hinting that the judiciary should know its limits. He called the repeal of the NJAC (National Judicial Appointments Commission) Act a “serious compromise” of parliamentary sovereignty.
In the Kesvananda Bharti case, the Supreme Court dealt with questions about the possible scope of constitutional amendments and concluded that Parliament can amend the Constitution. But it cannot change its basic structure.
Perhaps the 99th Amendment (of the Constitution) which was to repeal the National Judicial Appointments Commission Act,” Justice Nariman said.
In an appearance to the vice president, the former judge noted that the basic structure doctrine has been challenged twice, and defeated, and “no one has said a word” in 40 years.
“This is a doctrine that has twice been tried to be abolished, and that too more than 40 years ago. Since then, except very recently, no one has said a word about it. So let us be very clear that this is something that has come about. Say and Speaking for myself, thank God it has come to stay,” he added.
In a strongly worded warning, picturing a world without free and fearless judges, he said we would “enter the abyss of a new dark age”.
“If you don’t have independent and fearless judges, say goodbye. Nothing remains. Indeed, in my opinion, if at last, this fort falls or falls, we will enter a new abyss. The dark age, where Lakshmana (the late cartoonist And who is Lakshmana).
Justice Nariman said the Supreme Court should ‘tie up all the loose ends. Of the Memorandum of Procedure for judicial appointments which was being “friended” recently.
He said the Supreme Court of India should constitute a five-judge bench to tie up all loose ends in the Memorandum of Procedure for appointment of judges.
“And that constitution bench, in my humble opinion, should once and for all say that once the collegium sends a name to the government. If the government has nothing to say within a certain period, let’s say 30 days, then that will be it. Consider that something to say. No… sitting on this name is very serious against democracy in this country,” Justice Nariman Rem