Herald View: Making Sense of Law Minister's Tirade against the SC Collegium

Ministers handling sensitive portfolios rarely speak out of turn and without taking into account the possible reaction, if not consequences. When, therefore, the Union law minister began in October this year a tirade against the collegium system of appointing judges to the higher judiciary, it was designed to provoke a public debate.

The design has become clearer over the last three months as the law minister Kiren Rijiju lost no opportunity of repeating his grievance at the Supreme Court collegium.

He had complained bitterly that the collegium was busy appointing judges when the court had so many pending cases. Speaking in Parliament this week, he blamed the Supreme Court for wasting its time hearing ‘bail cases’ and ‘frivolous‘ Public Interest Litigations. For good measure he asserted somewhat ingenuously in the Rajya Sabha that the government had a ‘very limited role’ to play in appointing judges.

The minister’s faux concern appear to be misplaced because studies have shown that over 80 per cent of the pending cases are in subordinate courts.

The pendency of cases in the Supreme Court last month was estimated to be around sixty thousand. Pendency of cases before the high courts in comparison ran into lakhs and in subordinate courts into crores. The appointment of judges to the high courts and the Supreme Court, therefore, have little to do with the mounting number of pending cases.

The minister’s concern is also misplaced because it was in November (Nov. 18), when Chief Justice of India D.Y. Chandrachud declared that each of the 13 benches of the Supreme Court would daily take up bail and transfer cases on a priority basis and clear all pending cases before the beginning of Christmas vacation.

In response to an RTI application last year, the Supreme Court registry had revealed that the number of bail and transfer cases pending before the Supreme Court was a little over one thousand, less than two per cent of the total cases pending before the apex court. Not the pending cases but the government desire to wrest the right of appointing judges from the judiciary seem to be behind the minister’s sustained attack on the collegium system.

The campaign seem designed to prepare the ground for a new law to form a judicial appointments commission and give the government more flexibility to appoint judges of its choice. The collegium system has its flaws but the reason why the Supreme Court, possibly one of the few constitutional courts anywhere to hear bail cases, is burdened with bail cases is because of the extreme reluctance of subordinate courts and high courts to grant bail.

While jurists, scholars and politicians agree that bail should be the rule and jail an exception, in actual practice jail has become the rule; and no matter what the law minister says, the government at the centre and in the states cannot escape their responsibility for the impasse.

They have by their action created the impression that they do not want bail to be granted. While the law minister takes a pot shot at ‘frivolous’ PILs, many of the cases instituted by the government are, one suspects, equally frivolous. So are grounds for opposing bail. When someone like late Fr Stan Swamy, over 80 years old and ailing, or Gautam Navlakha, all of 70 and ill, seek bail, they are opposed because of the ‘seriousness’ of the cases against them.

Imprisonment of activists, students, lawyers and protestors among others for indefinite periods and without trial, their incarceration on frivolous grounds is why they are forced to reach out to the Supreme Court for redressal.

Even the Supreme Court is often wary and handicapped because it is not a trial court and cannot go into the merits of the case. What is more, very few citizens are able to reach out to the Supreme Court for bail when their liberty is curtailed.

With the government being the main litigant in this country, the law minister will do well to look into the mirror and discover worthier ways to reduce the number of pending cases and spare the Supreme Court of the burden of hearing bail matters.