The NJAC Act, unanimously passed by both the Houses of Parliament and ratified by more than half of all the states, was struck down by a Constitution bench of the apex court as unconstitutional in 2015, and the collegium system of appointing judges to high courts and the SC was upheld.
Rijiju’s remarks suggest a gradual upping of the ante against the SC and comes against the backdrop of the collegium’s failure to finalise their choices in view of divisions within.
Just a week ago, the law minister, while speaking at an event in Gujarat, had called the collegium system of appointing judges opaque and suggested that the higher judiciary should focus on delivering judgments rather than spending time on appointments.
“When it comes to the NJAC, it was an Act passed by Parliament unanimously. All parties came together and passed this particular Act in both houses of Parliament…it means it is the collective will of the nation. So once a collective will of the nation has been brought together by all parties and passed through Parliament, we were expecting that the judiciary or the Supreme Court will respect the will of the people and will of Parliament. But the SC in its own wisdom struck it down…there is a sense, and as law minister, I feel that the Supreme Court has not agreed with the will of the people of India,” Rijiju said in an interview to a TV channel here.
He said the “alternative mechanisms of appointments suggested were not better than what NJAC provided but since the SC struck it down, the ‘time-taking’ collegium system had to be continued.”
The striking down of the NJAC Act in 2015 had invited wider criticism from the judicial fraternity which questioned the wisdom of the apex court constitution bench not offering any real alternative while striking down the NJAC. Reacting to the SC judgment, former law commission chairman Justice A P Shah had then said: “it is disturbing that the apex court was comfortable that judicial independence would be safe in the collegium system.”
Justice Shah even questioned the Third Judge’s case of 1998 which became the basis on which the collegium system assumed primacy in appointment of judges for the higher judiciary. “The judgment in the Third Judge’s case lacked any detailed textual or normative reasoning, read more like a policy brief. There was no safeguard against arbitrariness, no mechanism to gather data, and no criteria for selection. The system was ad hoc and shrouded in secrecy,” the former law commission chairman had said.