Law Minister Kiren Rijiju on Saturday invoked the constitutional 'Lakshman Rekha' guiding different institutions, including the executive and the judiciary, and wondered that if judges become part of administrative appointments, who would carry out judicial work.
Rijiju was responding to a question on a Supreme Court bench directing the government to set up a panel comprising the prime minister, the chief justice of India and the leader of opposition in the Lok Sabha to select the chief election commissioner (CEC) and election commissioners till a law is in place for the same.
"The appointment of election commissioners is prescribed in the Constitution. Parliament has to enact a law. Accordingly, the appointment has to be done. I agree that there is no enactment for that in Parliament, there is a vacuum," the minister said at the India Today Conclave.
Rijiju said he is not criticising the apex court judgment or talking about its 'repercussions' or what the government is going to do on the issue.
"... But what I am saying is that if the CJI or judges of India sit on every important appointment, who will carry forward the judiciary's work? There are so many administrative matters in the country. So we have to see that judges are primarily there to deliver judicial work. They are there to deliver judicial orders by giving justice to people," he said.
The minister felt that if judges got involved in administrative work, they would have to face criticism.
He said the principle of justice will be compromised if a judge ends up hearing a matter of which he or she was a part.
"Suppose you are the chief justice or a judge. You are part of an administrative process that will come into question. The matter comes to your court. Can you deliver a judgment on a matter you were part of? The principle of justice itself will be compromised. That is why the Lakshman Rekha is very clear in the Constitution," Rijiju said.
In a landmark verdict aimed at insulating the appointment of the CEC and election commissioners from the executive's interference, the Supreme Court ruled that their appointments will be effected by the president on the advise of a committee comprising the prime minister, the Leader of Opposition in the Lok Sabha and the CJI.
A five-judge Constitution bench headed by Justice K M Joseph, in a unanimous verdict pronounced earlier this month, held that this norm will continue to hold good till a law on the issue is enacted by Parliament.
A vacancy will arise in the Election Commission early next year when Election Commissioner Anup Chandra Pandey demits office on February 14 on attaining the age of 65 years.
Responding to questions on the government's relations with the judiciary, Rijiju said it will not be proper to use the word 'confrontation' in describing their relationship.
"In a democratic setup there are differences of opinions and positions.
"Between different organs -- the executive, the judiciary and the legislature -- there will be issues which run against each other's ideas. But to say that there is a confrontation is not correct," he said.
He asserted that the appointment of judges was not a judicial work but 'purely administrative in nature'.
He said it is the bounden duty of the government to carry out due diligence on the names recommended by the collegium.
"Otherwise I'll be sitting there as a post master. Secondly, as per Constitution, appointment of judges is the duty of the government," he observed.
On the issue of the Supreme Court Collegium making public intelligence reports with regard to some candidates recommended for high court judgeship, Rijiju wondered what is the sanctity of carrying out such a great effort in secrecy in the interest of the nation if reports of R&AW or IB are put in the public domain.
"I am mindful of my responsibility. I'll never ever put in public domain information which will not serve the purpose for which we are sitting there," he said.
On the issue of same-sex marriage, he reiterated that such issues have to be debated in Parliament which reflects the will of the people.
If a law passed by Parliament does not reflect the spirit of Constitution, the Supreme Court has the option to alter it or pass an adverse judgment or refer it back to Parliament, he noted.
Policy has to decided by people through their representatives in legislature, he observed.
On the issue of accountability and 'Lakshman Rekha', he said the judges are not accountable, 'you know it'.
"Many people have suggested that along with the National Judicial Appointments Commission, there should be national judicial commission to regulate the conduct and the process of how courts are maintained, ruled.... So, there are suggestions.
"I am not going to talk about any particular suggestion...but in general it is coming to me. We all are accountable. Parliament runs under rules, government functions under rules of business," he said.
But in courts there are no rules, there are practices which are being changed from time to time and the chief justice as the master of the roster conducts certain things as far as the holidays are concerned, he claimed.
"So these are not exactly decided on the basis of rules framed by Parliament but these are on the basis of conventions and practices adopted by SC and different high courts," he said.
"...definitely while court is on vacation, cases will come to a halt. It is a fact. Definitely there can be regulation but I am of the opinion that judges require holidays because they deal with cases every day and need a break," the minister said.