He said that this should be done on the judicial side by a Constitution Bench by way of a ‘Fifth Judges case’.
“I would strongly hope that our Supreme Court has a 5th judges case namely that they would constitute another bench of at least 5 judges in which this MoP (Memorandum of Procedure) finally whatever loose ends are there, tie them up and finish it. And that constitution bench in my humble opinion lay down once and for all, that once a name is sent by the collegium to the government, if the government has nothing to say, for a period of 30 days, then it will be taken that it has nothing to say,” he said.
The statement was made in light of allegation raised against the Central government that it is refusing to respond to the Collegium recommendations.
The judiciary has accused the government of “sitting over” the files without clearing it or rejecting it.
Justice Nariman said that this is being done by the government to take advantage of the frequent changes to the Collegium’s composition.
“This sitting on names is a very deadly thing against democracy in this country. Because what you are really doing is you are waiting out a particular collegium to hope that another collegium changes its mind. And that happens all the time. Because you the government are continuous, you carry on for five years – at least. The Collegiums that come, have a huge attrition rate,” he said.
Hence, it is very important thing that a judgment of Supreme Court lays down a deadline for the government to respond, the former judge said.
Justice Nariman was delivering the seventh Chief Justice MC Chagla Memorial Lecture on the subject ‘A tale of two Constitutions- India and the United States: the long and short of it all’.
Justice Nariman also said that the top court should lay down whether, after reiteration, the appointment should take place within a fixed time period.
“Let us assume within thirty days the government says ‘no’ for good reasons and reasons are sent back to government by the Collegium saying, “No, please appoint”. Whether at the end of thirty days or the end of the reiteration, appointment should also take place within a fixed time period. Whatever that time period,” he said.
In his speech, Justice Nariman also underlined the significance of having institutions which are functional without which the Constitution would be meaningless.
“Ultimately it is important to remember that you may have forged for yourself an excellent Constitution. But if, ultimately, those who are the institutions under it malfunction, there is very little you can do. Constitution should be written off,” he said.
Source: Barandbench
