Collegium fractured: Is it time for a Presidential reference to the Supreme Court?
The Supreme Court has always opposed the dilution of its monopoly when it came to making appointments. A well drafted NJAC act was struck down by the Supreme Court thus indicating that its Collegium is supreme when it came to making appointments both the Supreme Court and High Courts.
The Collegium is a body of the SC which comprises the Chief Justice and four next senior most judges. The Modi government had felt that the appointment process ought to have more transparency and keeping this in mind, it brought about the NJAC. This was however struck down by the Supreme Court, thus keeping its monopoly in the matter intact.
Following the outburst by the four judges of the Supreme Court led by Justice J Chelamewar, the rift or fracture in the Collegium came out in the open. All the four judges who are part of the Collegium were out in the open.
The government has rightly refrained from commenting on the issue and said that it was an internal matter of the Supreme Court.
Top government sources say that this rift is not a healthy one. There have been attempts made by several legal luminaries to douse the fire. However there are a couple of issues that would require clarity and in such a situation, the government would have to step in.
The system has become unworkable now and there is a need to look into the matter. At the highest levels, there are consultations on to resolve the issue. In such an event, the government could go ahead with a Presidential reference into the matter.
If the government decides on such a reference, then it would be send by the President to the Chief Justice of India under Article 143 (1) of the Indian Constitution.
Article 143(1) states, " if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon."
In the year 1998, the then President of India, K R Narayanan had sent a reference under Article 143 (1) in which he had raised doubts about the appointments to the higher judiciary. A nine judge Bench of the SC had on October 28 1998 gave its opinion on the reference and said that it had the sole grip over appointment of judges to the higher courts.