Rijiju again slams Collegium; CJI calls it best system to appoint judges

Law Minister Kiren Rijiju on Saturday claimed that a few retired judges and some activists who are 'part of the anti-India gang' are trying to make the Indian judiciary play the role of the opposition party.

He again criticised the collegium system to appoint judges, saying it is a result of the 'misadventure' of the Congress party.

The minister was speaking at the India Today Conclave, where Chief Justice of India Justice D Y Chandrachud later defended the Collegium system, saying 'not every system is perfect but this is the best system we have developed' and the 'object was to protect the independence of the judiciary, which is a cardinal value'.

The minister said at a recent seminar in Delhi, where some retired Supreme Court judges and some senior lawyers were present, the topic was accountability in judges' appointment.

"But the discussion the whole day was how the government is taking over the judiciary," he said.

The minister said he shares an excellent relationship with the chief justice of India, the present one, the last one and all the judges of the Supreme Court.

"It is a few of the retired judges -- maybe three or four -- a few of those activists, part of the anti-India gang - these people are trying to make Indian judiciary play the role of the opposition party.

"Some people also go to the court and say please rein in the government, please change the policy of the government . These people want the judiciary to play the role of the opposition party, which cannot happen," Rijiju said.

The judiciary, he asserted, is neutral.

"Judges are not part of any group or political affiliation. How can these people openly say that the Indian judiciary must take head-on with the government. What kind of propaganda is this," he wondered.

On the issue of the appointment of judges, Rijiju said there is no role of the judiciary as such to initiate and to give finalisation to the appointment of judges.

"It was only later due to the misadventure of the Congress party, the Supreme Court started acting, which some people describe as judicial overreach. Then the collegium system came into existence."

But right now, the position of the government is very clear that the collegium system is in place.

"As long as a new system is not introduced, we will follow the collegium system but the appointment of judges cannot be done by a judicial order. It is purely administrative," he said.

Rijiju has been quite vocal against the Collegium system and once even called it 'alien to our Constitution'.

Speaking at the conclave later, while defending the Collegium, CJI Justice Chandrachud said 'not every system is perfect but this is the best system developed by the judiciary'.

The CJI said the object of the Collegium system was to maintain independence and that can be done by insulating it from outside influences.

"As the Chief Justice, I have to take the system as it is given to us... I am not saying every system is perfect but this is the best system we have developed. The object of this system was to maintain independence which is a cardinal value. We have to insulate the judiciary from outside influences if the judiciary has to be independent. That is the underlying feature of Collegium," Justice Chandrachud said.

Amid the tussle between the government and the judiciary, the CJI also responded to Rijiju voicing displeasure over the Supreme Court Collegium revealing the government's reasons for not approving the names recommended by it for appointment as judges of constitutional courts.

"He has a perception. I have a perception and there is bound to be a difference of perceptions. And what's wrong in having a difference of perceptions? We have to deal with perceptions even within the judiciary. I dare say there is a difference of perception within the government. But we all deal with it with a sense of robust statesmanship.

"I do not want to join issues with the law minister for his perception. I respect his perception and I am sure he has respect for ours as well. The reason why we put this (the reasons cited by govt. to reject names for judgeship) on the SC website is the desire of the present Collegium to meet the criticism that we lack transparency and a genuine belief that opening of the processes will foster greater confidence in the citizens," the CJI said.

The 50th CJI also took questions on the controversy over the the SC Collegium's reiteration of openly gay senior advocate Saurabh Kirpal for appointment as a judge of the Delhi high court after it was rejected by the government.

Justice Chandrachud said the sexual orientation of a candidate for judgeship has nothing to do with his ability.

"The candidate (Kirpal) you are referring to, every aspect which was mentioned in the report of the Intelligence Bureau was in the public domain. The candidate in question is open about his sexual orientation. So, when the IB flagged something, we were not really opening up IB sources of information. What could be the danger? Someone might say if you put the IB report in public domain, you might be compromising the sources of information of the IB on the issues of national security. Somebody's life may be in danger.

"This was not a case like that. The IB report dwelt on the sexual orientation of an openly declared gay candidate for prospective judgeship. It's known to the entire profession and widely reported in the media. All that we said in the resolution was that the sexual orientation of a candidate has nothing to do with the ability or the constitutional entitlement of the candidate to assume a high constitution post of a high court judge," he said.

In January, the Supreme Court Collegium had reiterated its November 11, 2021 recommendation for appointing Kirpal as a judge of the Delhi high court, rejecting the Centre's contention that though homosexuality stands de-criminalised in India, same-sex marriage is still bereft of recognition.

When asked how independent is India's judiciary and was there any kind of pressure from the government, the CJI said there is absolutely no pressure from the government on how to decide cases.

"In my 23 years of being a judge, no one has told me how to decide a case. I won't even talk to a colleague who is presiding over a case and ask what's going on in that case. There are some lines which we draw for ourselves. That's part of our training...

"There is no question of pressure from the executive arm of the government. I hope I am speaking for the rest of the system as well. There is absolutely no pressure from the government. The Election Commission judgment is proof that there is no pressure on the judiciary," the CJI said.

The Supreme Court had recently ruled that the appointment of the Chief Election Commissioner and election commissioners will be done by the President on the advice of a committee comprising the Prime Minister, Leader of Opposition in the Lok Sabha and the Chief Justice of India.

On the issue of challenges the judiciary is facing with 4.32 crore cases pending, the CJI said it is true that there is a large backlog of cases but it shows the faith of the people in coming to the courts for justice.

"We should be discharging the faith of the people by being more efficient and reducing the backlog. It also shows there is a dearth of infrastructure in the judiciary. Our judge to population ratio is not commensurate with what it should be in a country like ours. There is a lack of infrastructure in the district judiciary.

"We need to completely modernise the Indian judiciary. Our model for judicial administration has been based on the colonial model which we have inherited from the British. That colonial model now has to give way because justice is not just a sovereign function but also an essential service," he said.

Elaborating on the process of appointments, Justice Chandrachud said parameters which are applied for selection of judges are well defined.

"First we look at merit. We look at the professional competence of the judge. We constantly analyse the judgements of the High Court judge when they come up in the appeal before us. We access those judgements. In the Collegium, we all read the judgements at the same time. We circulate the judgements of the High Court judges who are in the zone of consideration," he said.

Justice Chandrachud said the second aspect which is looked at by the Collegium is seniority and the third aspect is the broader sense of inclusion in terms of gender, marginalised communities, scheduled castes and tribes etc but that is not at the cost of sacrificing merit.

"Fourth, to the extent possible, we try to give adequate representation to different high courts, states, and regions. While considering appointment of a judge, we consult puisne (ranked lower in seniority) judges routed through the same high court. There is equal involvement of all the stakeholders in the system," he said.

On the issue of trolling of apex court judges on social media, the CJI said it is important not be affected by the cacophony of extreme views.

"I don't follow Twitter. I think it's important for us not to be affected by the cacophony of extreme views which you sometimes find on Twitter. I think social media is a product of time, not just of technology. Nowadays, there is live tweeting of every word which is being said in the court and that puts an enormous amount of burden on us as well," the CJI said.

Several opposition MPs recently asked President Droupadi Murmu for immediate action over social media trolling of Chandrachud while he was deliberating on a case related to the governor's role in Maharashtra during the formation of the Eknath Shinde government.

On constant criticism of judges taking long vacations, the CJI said judges of the Supreme Court in India sit for 200 days a year and their vacations are spent thinking about the cases, reading about the case laws and reflecting on the impact of their work on society.

"The work that we do between 10.30 am and 4 pm in the Supreme Court is only a fraction of the work that we do. In order to be ready to deal with the cases which are going to come up the next day, we spent an equal amount of time in the evenings reading for the next day. Without exception, all judges in the Supreme Court work for seven days a week," the CJI said.

Chandrachud said most of the time during vacations is spent on preparing for judgments.