SC collegium decision final, anything else malafide: Fali
New Delhi: If the five-member Collegium of the Supreme Court, which includes the Chief Justice of India, decides that a certain judge has to be appointed, then its word is final and a contrary decision by the government will be considered malafide, senior jurist Fali Nariman has said.
Nariman admitted that the collegium may or may not be split in its decision to send its recommendation back to the government insisting on appointing chief justice KM Joseph of the Uttarakhand high court to the Supreme Court, which may lead to a "confrontation with the government…we will cross that bridge when we come to it," he said.
He indicated that the current impasse over the appointment of a judge may be linked to the government "still smarting" under the Supreme Court's decision to strike down the parliament's decision to vote in favour of the National Judicial Appointments Commission (NJAC), which sought to control the appointment of judges. "The (government) is still very upset about that," he said.
He indicated that the joint Opposition's move challenging Vice-President Venkaiah Naidu's decision to impeach the chief justice in the Supreme Court could become a long drawn-out affair.
First of all, he said, the SC would have to decide whether Naidu's dismissal is "justiciable or not," meaning, since the matter concerns Parliament, the Court would have to decide whether it has the power to take up such a motion or not. "If the Court does take that decision, it will then have to decide whether the Vice-President's decision is untenable or not," Nariman said.
Moreover, he pointed out, when the Opposition goes to court in appeal against the Vice-President, it would be "up to the Chief Justice to decide which court it should be listed in front of.
"That's because he is still Master of the Roster, irrespective of the fact that he is involved or not (in this case, in the move to impeach him),
and because the question of fixing benches inheres in him. (That prerogative) can't be taken away or shared with someone else. It inheres in him, and he should say who should decide the matter," Nariman said.