New Delhi: Former Supreme Court judge Sanjay Kishan Kaul on Friday said the National Judicial Appointments Commission was never given a chance to function, sparking outrage in political circles and questioning the functioning of the collegium system that appoints judges to the higher judiciary. A rift arose.
After coming to power in 2014, the Narendra Modi government enacted the National Judicial Appointments Commission (NJAC) Act.
The NJAC, which was entrusted with the responsibility of making judicial appointments, comprised the Chief Justice of India, two senior judges of the Supreme Court, the Union Law Minister and the CJI, two other eminent persons nominated by the Prime Minister and the Leader of the Opposition. Lok Sabha.
However, in October 2015, the Supreme Court struck down the NJAC Act as unconstitutional.
Justice Kaul, who stepped down on December 25, said in an interview with PTI that one has to accept that there is a problem in the collegium system and it would be “unrealistic” to say that it is functioning smoothly.
Justice Kaul, who was part of the apex court bench that refused to grant marriage rights to gay couples under existing laws, said the matter was not purely legal, but involved social issues, and the government should take such action. Can bring a law to give effect. rights for them in the future.
“Whether NJAC could have been dealt with differently is a hindsight. Maybe, it could have been kept pending the experiment. It was never given a chance to work. There was anger in political circles when it was repealed given that it was a unanimous decision of Parliament. This is way overruled and the judges are not allowing the system to be changed. “This has caused some friction in the functioning of the (collegium) system after the NJAC.” Kaul said.
“If people say that it (the Collegium) works smoothly, it would be unrealistic in a sense because it is not a fact. This is reflected in the number of pending appointments. Even till today, some of the names that have been recommended are pending, he said, adding, “We have to accept that there is a problem in the system. If we close our eyes to the problem we will not be able to reach the solution. You have to first accept the problem and only then you can find a solution.” ,
Justice Kaul, who was a member of the Supreme Court Collegium for over a year, said at present the collegium system is the law of the land and should be implemented as it is.
“It is very difficult to say what the way forward should be. Because the collegium system is the law of the country. Therefore the collegium system, such as it is, should be implemented. If the Parliament in its discretion says that tomorrow there should be some other system and if mistakes are found then they should take cognizance, it is their job to do so, we cannot do this. Therefore, it is our responsibility to follow the existing law,” he said.
Referring to the collegium recommendations pending with the government, he said the conflict is “reflected” in the number of pending appointments.
The NJAC Act, which was passed in 2014, provides for the procedure to be followed for recommending persons for appointment as the Chief Justice of India, other judges of the Supreme Court and Chief Justice and judges of the High Courts.
Responding to the question whether delayed disposal of cases amounts to denial of justice to common litigants, he said,
“It is so. But what to do? Can a judge decide a hundred cases in a day? No.”
On the issue of judges assuming charge after retirement, Justice Kaul said he was not interested in achieving this, and the issue should be left to the discretion of retired judges.
During his tenure of over six years and 10 months as a top court judge, Justice Kaul was part of several landmark judgments, including upholding the right to privacy as a fundamental right and the Centre’s decision to abrogate Article 370 of the Constitution. Was retained. The erstwhile state of Jammu and Kashmir was given special status.
