New Delhi, January 27
As the Centre repeatedly questioned the Collegium system of appointing judges, former Supreme Court judge Rohinton Nariman on Friday said it was the bounden duty of the Government to accept and follow the Supreme Court’s verdicts on judicial appointments and the doctrine of basic structure.
Delivering the 7th MC Chagla Memorial lecture on ‘A tale of two Constitutions-India and the United States: the long and short of it all’ in Mumbai, the former SC judge suggested that the Supreme Court should set up a five-judge Constitution Bench to tie all loose ends of the Memorandum of Procedure on appointment of Judges.
He said the top court should lay down a strict deadline for the government to respond to the Collegium’s recommendations, failing which it should be taken that the government has no comments to offer and the Collegium should go ahead with the appointments.
Justice Nariman said, “Whether at the end of 30 days or at the end of reiteration, the appointment also should take place within a fixed period... Ultimately, it’s how a Constitution is worked, and if you don’t have independent and fearless judges, say goodbye. There is nothing left.
“As a matter of fact, according to me, if finally, this last bastion (judiciary) falls, or were to fall, we will enter the abyss of a new dark age, in which Laxman’s (late cartoonist) common man will ask himself only one question – if the salt has lost its savour, wherewith shall it be salted?”
He also criticised the recent statements of Law Minister Kiren Rijiju against the Collegium system.
“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 if the salt has lost its savour, where with shall it be salted 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 the USA. So minimum five, what we call Constitution Bench, are trusted to interpret the Constitution.
“Once those five or more (judges) 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,” Nariman said.
Regarding Vice-President Jagdeep Dhankahr’s criticism of the basic structure doctrine, Justice Nariman said, “Since 1980 till date, this extremely important weapon in the hands of the judiciary has been used a number of times as one of the extremely important checks and balances to check the 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.”
“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 to 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 say and speaking for myself, thank god it has come to stay”.
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