“Not transparent”, Justice Minister Rijiju on judicial appointments
Stressing the need for reforms in judicial appointments, Union Law Minister Kiren Rijiju said the procedure of the Collegium system was very opaque and there was “internal politics” in the judiciary.
Speaking at ‘Sabarmati Samvad’, an event organized by the weekly Rashtriya Swayamsevak Sangh (RSS) ‘Panchjanya’ here on Monday, the Union Minister said, “The Constitution is the most sacred document. We have three pillars, namely the legislative, the executive and the judiciary… I think that the executive and the legislative are linked in their duties and that the judiciary enhances them. But the problem is that when the justice system goes astray, there is no system to improve it.
Rijiju said India has a vibrant democracy and sometimes appeasement policies can also be seen. He said the Bharatiya Janata Party (BJP) government has never undermined or challenged the judiciary.
On judicial activism, the minister said, “When we created the National Judicial Appointments Commission, it was challenged and the Supreme Court struck it down. If there is no system to regulate the judicial system, the term judicial activism is used. Many judges have submissions but these do not include part of their order. They express their thoughts through observations. There are also objections against these observations in society. It would be good for the judges to make their observations known through their orders.
Rijiju said he has observed that on several occasions judges overstep the bounds of their duties and tend to perform executive functions without knowing the realities on the ground.
“When justice exceeds its limits… Judges are not aware of the practical difficulties or the financial conditions. It will be good if people stay focused on their respective duties. Otherwise, people could also say that we are doing executive activism, ”said the Minister of Justice.
Referring to former Prime Minister Indira Gandhi’s tenure, Rijiju said the CJI was established after overtaking three senior judges. He said the Modi government does not engage in such actions.
“We didn’t do that kind of stuff. Now if we take action to regulate the judiciary, these people claim that we want to control or influence the judiciary or create an obstruction in the appointment of judges,” he said.
Rijiju called for a self-regulatory mechanism within the judiciary to regulate the conduct of judges.
Asked if the judiciary is beyond the bounds of positive criticism, Rijiju said: “Whether it’s a parliamentarian or a judge, they have a privilege. There is a code of ethics in Parliament. But in the case of the judiciary, such a mechanism does not exist. There should be a self-regulatory mechanism within the judiciary for the conduct of judges.
He said that in the age of social media and live streaming of court proceedings, it is normal for people to judge judges.
“I cannot order justice. I just want to warn the judiciary that it is part of democracy, people are watching them so their behavior should be accordingly,” Rijiju said.
“Until 1993, judges were appointed by the government in consultation with the Chief Justice of India. At that time, we had very eminent judges. After 1993, the Supreme Court defined “consultation” as an agreement. In no other area has consultation been defined as agreement except in judicial appointments,” he added.
Notably, the Supreme Court Collegium is presided over by the Chief Justice of India and consists of the four senior justices of the court. Although the government can raise objections or seek clarifications regarding the Collegium’s recommendations, the government is required to approve the names if the five-member body reiterates them.
He said that in accordance with the spirit of the Constitution, the appointment of judges is the job of the government
Rijiju said, “The Supreme Court expanded the college system in 1998. Nowhere in the world do judges appoint judges. The primary duty of judges is to dispense justice.
The minister said he observed that half the time, judges are busy deciding on appointments, which affects their main task of “delivering justice”.
“Now I have observed that more than half the time judges spend time appointing judges instead of dispensing justice. The internal politics of the judiciary is not seen from the outside. There are intense deliberations. Sometimes even groupism also occurs. The procedure is very opaque and not transparent. If the judges play the executive role, then it will be reconsidered,” Rijiju said.
Prior to 1993, he said no little finger had been lifted or there had been criticism of the judges since they were not associated with the appointments.
Rijiju said the Chief Justice of India (CJI) had written to him about the ‘attacks’ on the judiciary on social media, saying they should be checked and strict measures should be taken by the government.
“CJI wrote to me against the attack on the justice system on social media. He was seeking to control this. I did not give my answer deliberately. If we give an answer, we must move forward”, said the Minister of Justice.
He further stated that the Indian judicial system is the colonial system and there is the influence of 200 years of British rule on it.
“I will consult with CJI to find out if we continue to follow the British dress code or use clothing according to our environmental conditions and culture,” he said.
Rijiju further stated that there is the dominance of a group of lawyers in the Supreme Court who threaten even the judges.
“In the Supreme Court, there are 50 to 60 lawyers who threaten even the judges,” he said.
In 2014, the National Democratic Alliance government passed the National Judicial Appointments Commission (NJAC) Act to change the system for appointing judges.
The NJAC was a proposed body, which would have been responsible for the appointment and transfer of judges to the upper judiciary. The NJAC Act and the Constitutional Amendment Act came into force on April 13, 2015. But on October 16, 2015, the highest court struck down the NJAC Act. The verdict restored the primacy of the collegiate system of judges appointing judges.