SC issues notice to SC on SC appointing SC judges

New Delhi, Sept 7: In an intriguing turn of events, the Supreme Court today issued notice to the Supreme Court over the appointment of judges to the Supreme Court and High Courts through the system of collegium, which is now in the eye of a storm.

A Supreme Court Bench, hearing an PIL filed by a veteran social activist on the propriety of collegium system of choosing judges, issued notices to the Central government and the Supreme Court itself, asking them to respond within two weeks and, in the time-tested traditions of judiciary, adjourned the case without specifying any specific date.

The PIL, filed by Delhi-based Rajesh Agarwal, an advocate and a well-known rights activist, argued that the collegium system of appointing judges by a panel of judges is wrong.  But rather than keeping it simple and actually understandable to all, the PIL read:  ‘the collegium system, by its inherent nature and its institutionalized framework, is both bad in principle and, ipso facto, against the essential canons of well-established tenets of jurisprudence. The sine qua non of any appointment, fair play, has been rendered critically inconspicuous by the manacled matrix of collegium’.

The PIL is the latest in the ever-unfolding developments in the matter of appointments to the judiciary.  The collegium system has come under recent flak when one of its members, Justice Jasti Chelameswar, wrote to the Chief Justice (who is also a member of the collegium) that he (Chelameswar) would not attend the collegium meetings as there was no transparency in its (collegium’s) conduct.

Last year, the Supreme Court struck down the alternative to the collegium, the NJAC (National Judicial Appointments Commission), as being unconstitutional.

In the event, today’s PIL and the subsequent SC notice to SC has, as the proverb would have it, set the proverbial cat among the proverbial pigeons.  Today’s developments also immediately triggered speculation of a constitutional crisis as this was perhaps the first time that the Supreme Court was on a collision course with the Supreme Court.

But some constitutional experts played down the fears saying that ‘though this is perplexing, but is not exactly without precedent’. Well-known constitutional lawyer Nariman Contractor recalled the 1964 case of State of Bihar vs the city of Patna, in which the then sitting Mayor of the city challenged his own appointment to the post as it was okayed by a ‘House’ of which he himself was a member. The Supreme Court,  in what is deemed to be a landmark verdict, advised the Mayor to adhere to the strict constitutional process, which in this case was seeking immediate medical help for his mental condition, and famously declared — and this has been a much-quoted line in legal circles — ‘the court is adjourned’.

Contractor also recalled a similar instance from the annals of British judiciary when Lord John Burns dramatically issued summons to the then sitting Chief Justice of British Supreme Court, Lord Clement Spofforth, in a case over spending taxpayers’ money for buying perukes for the ‘Lordships’. The much talked of crisis, billed as Milord vs Milord, however, blew over as the summons could not be issued to the Chief Justice as the court was, as its inevitable wont, ‘on vacation’. On reconvening, almost everyone had forgotten about that case and moved on to something else. ‘You cannot rule out something like that happening in this collegium case, too’, Contractor pointed out optimistically.

Meanwhile, the Solicitor General has advised the government to stick to the core Constitutional principle of preparing replies in triplicate and sending them via registered post and create hell for administrative staff in the judiciary.

Elsewhere, the Supreme Court, according to the late reports at the time of going to press, has readied a tough response to the Supreme Court.

The sum and substance of it is:

‘If it is unconstitutional for the collegium of judges to appoint judges, it is equally unconstitutional for the Supreme Court to hear case against the Supreme Court’.

‘In essence, the PIL and by extension the petitioner, is urging the Supreme Court to commit an act of un-constitution against itself.’

Elsewhere, in another late news, another advocate has filed a complaint with the Delhi police that the Supreme Court notice to Supreme Court was an act of sedition on the highest court of law in the country, and hence wanted action against, well, the highest court of the law in the country.