Without naming him, Justice Nariman also took on Vice President Jagdeep Dhankhar, who has questioned the basic structure doctrine, saying the basic structure is here to stay, and "thank god it has come to stay".
Amid escalating attacks from the Centre on the Supreme Court’s Collegium system of appointments to higher judiciary, former Supreme Court judge Rohinton Fali Nariman, who himself was a part of the collegium before retiring in August 2021, took on Law Minister Kiren Rijiju head-on at a public event on Friday. Calling his public remarks on the judiciary ‘diatribe’, Nariman reminded the Law Minister that it is his ‘bounden duty’ to accept the judgements of the court, whether ‘right or wrong’. Without naming him, he also took on Vice President Jagdeep Dhankhar, who has questioned the basic structure doctrine, saying the basic structure is here to stay, and “thank god it has come to stay”.
On the Centre “sitting on” names recommended by the Collegium, he said it was “deadly for democracy”, and suggested a 30-day deadline for the government to respond, or the recommendations get automatically approved.
“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 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 5, what we call Constitution Bench, are trusted to interpret the Constitution. Once those five or more have interpreted the Constitution, it is your bounden duty as an authority under Article 144 to follow that judgement. 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 judgement, right or wrong,” he said.
The government has been pressing for a greater role in the appointment of judges, which has been the domain of the Supreme Court collegium or panel of senior most judges since 1993.
Vice President Jagdeep Dhankhar has also backed the Centre, questioning the basic structure doctrine and indicating that the judiciary should know its limits. He called the striking down of the NJAC (National Judicial Appointments Commission) Act a “severe compromise” of Parliamentary sovereignty. Dhankar called the historic 1973 Supreme Court judgement on the Kesavananda Bharati case — an earlier instance of the legislature versus judiciary debate — a ‘wrong precedent’.
“In 1973, a wrong precedent (galat parampara) started. In the Kesavananda Bharati case, the Supreme Court gave the idea of basic structure, saying that Parliament can amend the Constitution but not its basic structure,” Dhankhar said.
In the Kesavananda Bharati case, the top court had dealt with questions on the extent of constitutional amendment that is possible and concluded that Parliament can amend the Constitution, but it cannot change its basic structure.
“From 1980 till date, this extremely important weapon in the hands of the judiciary has been used in number of times as one of the extremely important checks and balances to check an 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,” Justice Nariman said.
In an apparent swipe at the Vice President, the former judge pointed out that the basic structure doctrine has been challenged twice, and defeated, and “nobody has said a word” about it in 40 years.
“It is a doctrine that was sought to be undone twice, and that too 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,” he added.
In a strongly worded warning, picturing a world without independent and fearless judges, he said we will “enter the abyss of a new dark age”.
“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 bastion falls, or were to fall, we will enter the abyss of a new dark age, in which Laxman’s (late cartoonist RK Laxman) common man will ask himself only one question – if the salt has lost its savor, wherewith shall it be salted?”” he said.
Justice Nariman said the top court should ‘tie all loose ends’ of the Memorandum of Procedure for judicial appointments that is being “bandied about” recently.
The Supreme Court of India should constitute a five-judges bench to tie all loose ends of the Memorandum of Procedure for the appointment of Judges, he said.
“And that Constitution Bench should, in my humble opinion, lay down once and for all that once a name is sent by the collegium to the government, if the government has nothing to say within a period, let’s say 30 days, then it would be taken that it has nothing to say…This sitting on names is very deadly against democracy in this country,” Justice Nariman remarked, adding, “Because what you are doing is you are waiting out a particular collegium to hope that another collegium changes its mind. And that happens all the time because you the government are continuous, you carry on for five years – at least. But the collegium that comes, have a huge attrition rate. So this is one very important thing that a judgement of our court should lay down.” He also suggested a hard deadline, even in cases where Centre sends objections and the Collegium reiterates.
The former Supreme Court judge was delivering the seventh “Chief Justice MC Chagla Memorial Lecture” in Mumbai on “A tale of two Constitutions – India and the United States: the long and short of it all” when he made these scathing remarks.
He ended his talk with a stark warning on the health of democratic institutions.
“To end this talk, it is important to remember that you may have forged for yourself an excellent Constitution, but if ultimately those who are the institutions under it, malfunction, there is very little you can do. The constitution should be written off,” he said.