NEW DELHI: Law Minister Kiren Rijiju on Monday said the government wouldn’t like any other organ to encroach over its exclusive domain in decision-making and it cannot be forced to appoint a judge who it, based on inputs, considers unfit for the office.
Replying to a debate in the Rajya Sabha on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021, he referred to the process of appointment of judges to the higher judiciary, saying the set procedure provides for the government to do due diligence over recommended names and it can, based on inputs from the resources available to it, deem a particular person being unfit to be a judge of either SC or the HC.
“When people talk of independence of judiciary, the independence of legislature and executive (is equally existent),” he said. “When the Constitution has drawn a line and decided that there shouldn’t be an overstretch or overreach, when a domain of an organ has been decided, the domain of other organ too has been decided. We dont want overreach.”
He said he is being “very careful and cautious” with his words and they should not be misconstrued as a challenge to the independence of judiciary.
“I wouldn’t want that to happen ever. But being a minister I’m part of the executive and we work within our boundaries, we don’t exceed our reach. And when we don’t go beyond our perimeters, we wouldn’t want others to enter into our domain as well. This must be our effort,” he said.
The minister said the laid out procedure provides for the government doing due diligence on the names suggested for appointment as judges.
“If a name, which I receive and according to the report of the government from all the resources and inputs which we have, if we find that the particular person is not fit to be a judge then how can we be forced,” he said. “Due diligence means that we use all resources available to scrutinise.”
The minister said that in 1993, the Supreme Court converted consultation (with the apex court) for appointment of judges as concurrence and in 1998 it was further expanded.
“The present system of appointment of judges is being criticised (in some quarters) over lack of transparency, lack of accountability,” he said, adding a draft memorandum of the procedure has been placed before the Supreme Court for making changes in the way judges are appointed to the higher judiciary.
He refused to comment till the apex court gives its views on the draft memorandum of the procedure, Rijiju said. The MoP is a document which guides the appointment of judges to the higher judiciary.
“The latest Supreme Court direction is that when the names (of judges) are reiterated the second time, the government has to appoint them within 3-4 weeks’ time. This direction which has come from the SC is not yet part of the memorandum of procedure,” he said.
“This is a difficult proposition for the government. If there are things which put the government in a difficult situation, then we will be forced to refer back to the provisions of the Constitution.”
He, however, did not elaborate on what he meant by using the constitutional provisions.
The founding fathers of the Constitution, he said, created certain things and they should be carried forward in that spirit.
“I don’t want to spin things out of the way but present situation, as it stands, is that we are having a memorandum of procedure and that we are in the process of consultations with the Supreme Court and I hope within the existing system, unless it is changed, we shall be carrying forward our duty diligently,” he said.
Rijiju said there is a process of doing due diligence on the names suggested for the appointment of judges to the high courts.
The government is aware of the issues on growing backlog of cases, he said adding that several factors contribute to such piling of cases, including lack of number of judges, support staff and infrastructure.
“There are several other factors which may cause a delay in disposing of cases. These are like frequent adjournments, lack of adequate arrangements to track and bunch cases for hearing… the central government is fully aware of all these problems. But most of the infrastructure problems, especially at high courts and lower judiciary… the primary responsibility lies with state governments,” he said.
Commenting on the recent attack on judges, the minister said the safety and security of judges is an important matter.
“There have been attacks that have happened in Delhi and Jharkhand… I have also taken the matter seriously. But law and order is a state subject and the Home Ministry is also taking cognisance of it,” he said.
The Rajya Sabha on Monday returned to the Lok Sabha a bill that seeks to bring clarity on the age of retired judges to determine when they will get enhanced pension.
The Lower House had passed the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021 on December 8. The Upper House returned the bill to the Lok Sabha after a discussion on Monday, since it is a money bill.
The bill seeks to bring an clear explanatory clause about the age of eligibility for enhanced pension for retired judges, he said.
While the issue of age of pension can be clarified through an Office Memorandum in case of civil servants, for high court and supreme court judges, it can be clarified through a Parliament legislation.
Replying to a debate in the Rajya Sabha on the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021, he referred to the process of appointment of judges to the higher judiciary, saying the set procedure provides for the government to do due diligence over recommended names and it can, based on inputs from the resources available to it, deem a particular person being unfit to be a judge of either SC or the HC.
“When people talk of independence of judiciary, the independence of legislature and executive (is equally existent),” he said. “When the Constitution has drawn a line and decided that there shouldn’t be an overstretch or overreach, when a domain of an organ has been decided, the domain of other organ too has been decided. We dont want overreach.”
He said he is being “very careful and cautious” with his words and they should not be misconstrued as a challenge to the independence of judiciary.
“I wouldn’t want that to happen ever. But being a minister I’m part of the executive and we work within our boundaries, we don’t exceed our reach. And when we don’t go beyond our perimeters, we wouldn’t want others to enter into our domain as well. This must be our effort,” he said.
The minister said the laid out procedure provides for the government doing due diligence on the names suggested for appointment as judges.
“If a name, which I receive and according to the report of the government from all the resources and inputs which we have, if we find that the particular person is not fit to be a judge then how can we be forced,” he said. “Due diligence means that we use all resources available to scrutinise.”
The minister said that in 1993, the Supreme Court converted consultation (with the apex court) for appointment of judges as concurrence and in 1998 it was further expanded.
“The present system of appointment of judges is being criticised (in some quarters) over lack of transparency, lack of accountability,” he said, adding a draft memorandum of the procedure has been placed before the Supreme Court for making changes in the way judges are appointed to the higher judiciary.
He refused to comment till the apex court gives its views on the draft memorandum of the procedure, Rijiju said. The MoP is a document which guides the appointment of judges to the higher judiciary.
“The latest Supreme Court direction is that when the names (of judges) are reiterated the second time, the government has to appoint them within 3-4 weeks’ time. This direction which has come from the SC is not yet part of the memorandum of procedure,” he said.
“This is a difficult proposition for the government. If there are things which put the government in a difficult situation, then we will be forced to refer back to the provisions of the Constitution.”
He, however, did not elaborate on what he meant by using the constitutional provisions.
The founding fathers of the Constitution, he said, created certain things and they should be carried forward in that spirit.
“I don’t want to spin things out of the way but present situation, as it stands, is that we are having a memorandum of procedure and that we are in the process of consultations with the Supreme Court and I hope within the existing system, unless it is changed, we shall be carrying forward our duty diligently,” he said.
Rijiju said there is a process of doing due diligence on the names suggested for the appointment of judges to the high courts.
The government is aware of the issues on growing backlog of cases, he said adding that several factors contribute to such piling of cases, including lack of number of judges, support staff and infrastructure.
“There are several other factors which may cause a delay in disposing of cases. These are like frequent adjournments, lack of adequate arrangements to track and bunch cases for hearing… the central government is fully aware of all these problems. But most of the infrastructure problems, especially at high courts and lower judiciary… the primary responsibility lies with state governments,” he said.
Commenting on the recent attack on judges, the minister said the safety and security of judges is an important matter.
“There have been attacks that have happened in Delhi and Jharkhand… I have also taken the matter seriously. But law and order is a state subject and the Home Ministry is also taking cognisance of it,” he said.
The Rajya Sabha on Monday returned to the Lok Sabha a bill that seeks to bring clarity on the age of retired judges to determine when they will get enhanced pension.
The Lower House had passed the High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021 on December 8. The Upper House returned the bill to the Lok Sabha after a discussion on Monday, since it is a money bill.
The bill seeks to bring an clear explanatory clause about the age of eligibility for enhanced pension for retired judges, he said.
While the issue of age of pension can be clarified through an Office Memorandum in case of civil servants, for high court and supreme court judges, it can be clarified through a Parliament legislation.
