Who crossed Lakshman Rekha? Union Law Minister Kiren Rijiju's run-in with judiciary in 2022

“Apas me ladke koi fayda nahi hai,” Union Minister for Law and Justice Kiren Rijiju said when asked about the mounting tensions between the executive and judiciary, during an address at the Supreme Court premises to mark the Constitution Day. .On the very same day at the Times Now Summit, referring to the judiciary’s complaints on delays in judicial appointments, he said, “don't say we (government) are sitting on the files but if you (judiciary) want to say so, then appoint judges on your own and run the show then”..This whiplash inducing sequence of events which occurred in a span of less than 24 hours and saw accusations being hurled of crossing the proverbial lakshman rekha, was emblematic of the manner in which the Law Minister interacted with the judiciary over the past year..It is only fitting then that we take a closer look at these instances especially since 2022 provided a unique opportunity to examine how Rijiju interacted with three Chief Justices of India (CJI) - CJI NV Ramana, CJI UU Lalit and current CJI DY Chandrachud..CJI NV Ramana .Things remained largely cordial, at least in the public eye, during the 1.5-year long tenure of CJI Ramana which ended on August 27 this year.While CJI Ramana was an eager orator who spoke at various events on the developments in the judicial sector, Rijiju kept himself away from the public eye for the most part of CJI Ramana's tenure. In April, while speaking at a national conference on “Mediation and Information Technology” in Gujarat, Rijiju said that he shares an excellent rapport with CJI Ramana and that whenever the two meet, excellent ideas and suggestions are shared."Whatever judiciary expects from the executive, we will deliver," he remarked.At the same event, both Rijiju and CJI Ramana expressed their strong commitment to pushing mediation as an alternate dispute redressal mechanism in India. In fact, both of them cited the Mahabharata to highlight the importance of mediation. .CJI UU Lalit.CJI UU Lalit had a short tenure of only 74 days. During this time, the CJI, whose main focus was on speedy disposal of cases and listing of constitution bench matters, shied away from engaging in too many open encounters with the Law Minister. .However, halfway through his tenure, by October 2022, Rijiju began training his guns at the judiciary over various incidents from the past year. Surprisingly, these issues had their genesis during the tenure of CJI Ramana but the Law Minister apparently chose to air his qualms only after several months had lapsed..Sedition.On May 11, 2022, a Supreme Court bench headed by then CJI NV Ramana asked the Central government and States to refrain from registering any cases for the offence of sedition under Section 124A of the Indian Penal Code, effectively keeping the colonial law in abeyance. While the historic move was largely hailed by the legal community, five months later, Rijiju fired a volley at the judiciary while speaking at the India Today conclave held in Mumbai on November 4. He said that the Supreme Court should have refrained from passing any order since the government had already told the Court that it was reconsidering the provision."Who should run the country? Should judiciary run the country or should elected government," the Law Minister asked."I am very upset about it....This is old an provision of law, which we are re-looking into. Despite that if they pronouncement comes from the court, definitely it is not a good thing...There is a lakshman rekha for everybody. Do not cross the lakshman rekha in the interest of the nation," he added..Social media attacks on judges.In July, after a bench of Justices Surya Kant and JB Pardiwala made some adverse observations in open court about BJP spokesperson Nupur Sharma for her remarks on national television about Prophet Muhammad, the two Supreme Court judges were subject to intense trolling, threats and attacks on social media.Even though concerns regarding the social media bashing were raised from all quarters, the Central government led by the BJP, and the Law Minister, chose to remain silent. That was until October when Rijiju spoke at an event held in Ahmedabad called Sabarmati Samvad, organised by a magazine published by the Rashtriya Swayamsevak Sangh (RSS). In his address, Rijiju confirmed that the CJI wrote a letter to him asking him to take strict action against social media attacks on judges but that he had deliberately not replied to the letter. Instead, he called for an in-house mechanism to be put in place by the judiciary to regulate oral observations made during hearings. Rijiju reiterated this sentiment again in late November when he reminded judges once more to be careful to not cross the lakshman rekha even while making oral observations."I don't want judges to be abused on social media or public forum as it is my duty to ensure judiciary is respected but if a judge is involved in some conduct or commentary, which wrongly touches the sentiments of the people, we have to think if the judge or his judgment has crossed the lakshman rekha, if he has entered some unchartered territory inviting criticism. Thus, we all need to be careful," he said..Judicial appointments: Collegium vs NJAC .The war of words between Law Minister and the judiciary reached a fever pitch in the past few months, mostly over the issue of judicial appointments. Since independence, the Central government had control over the appointment of judges but in 1993, the Supreme Court held that the executive is bound by the advice of the judiciary and established the collegium, comprising the CJI and four senior-most judges of the Supreme Court, for choosing and recommending judges for elevation to constitutional courts.In 2014, the BJP led Central Government passed a constitutional amendment replacing the collegium system with a National Judicial Appointments Commission, comprising the CJI, two senior-most Supreme Court judges, the Law Minister and two "eminent persons".However, in 2015, the Supreme Court struck down the amendment saying that it was unconstitutional and violated the basic structure of the constitution.Since then, it has been a long standing complaint of the judiciary that the Central government delays appointments by sitting on collegium recommendations and employs a pick and choose method of approving recommendations.While the collegium under CJI Ramana in conjunction with the Law Ministry managed to push through a large number of judicial appointments, Rijiju, in the latter half of the year, made several open statements criticising the collegium system in no uncertain terms. In October, he said that the collegium system is too opaque and that nowhere else in the world do judges appoint judges. On November 5, he said that there is intense politics at play even within the judicial community that is currently responsible for appointing judges and that the Central government would not be 'silent' forever over the 'lack of transparency' in the collegium system. .This drew the ire of several former judges who shot back saying that the lack of transparency is actually on the government's part.After he demitted office on November 8, even the relatively quiet CJI Lalit aired his views on the issue saying that Rijiju's comments may have just been his personal opinion and that the collegium system is foolproof. .By late November, Rijiju had not backed down. Terming the collegium an alien system, he said that if the judiciary feels that the government is sitting on files, then the judges should do as they please and appoint judges on their own."The Collegium system is alien to the Constitution. You tell me which provision of the Constitution provides for this system. But because the Supreme Court in its wisdom through a court ruling or a judgment created the Collegium which recommends names, government (will do) due diligence," Rijiju said..The Supreme Court quickly expressed its reservations about these statements, that too, in open court. On November 28, a bench of Justices Sanjay Kishan Kaul and AS Oka said that the Centre, by holding recommended names back, was frustrating the entire system and affecting the seniority of judges. The bench also asked the Attorney General and Solicitor General to advise the Centre on the issue..Interestingly, Rijiju, while answering questions in parliament during its winter session, said that there is no proposal to reintroduce NJAC, "at present".During another question hour of the Rajya Sabha on December 15, on whether the government planned to revive the NJAC, Rijiju said,"Supreme Court's 5-member Bench struck it down. A lot of retired judges, including members of the Constitution Bench, said that the decision to strike down an enactment passed unanimously in the parliament was not right.".On December 2, Vice President Jagdeep Dhankar, who is also a Senior Advocate, made an apparent reference to the striking down of the NJAC amendment. "I appeal to the people who are judicial elite class, thinking minds ... find a country where a Constitutional provision can be undone. But here our courts can run down such a provision. If the provision of the Constitution which has the backing of so many people is undone then imagine what will happen. After "this verdict" there was not a whisper in the parliament," the Vice President said..This renewed attack on the collegium system and dredging up of the three judges cases seemingly came out of nowhere. But one aspect that stuck out was the timing of of it all. The question of judicial appointments reemerged just a month before CJI DY Chandrachud, who will have a two year tenure, was about to take office. In these two years, he will also head the collegium and will have a hand in appointing 19 judges to the top court (including the recent appointment of Justice Dipankar Datta).While attack on judiciary have surfaced even in the past immediately prior to the elevation of judges as CJI, the furore over CJI Chandrachud's appointment seems to have surpassed it all. However, what prompted the Law Minister's more frequent no-holds-barred public speeches is, anyone's guess. .CJI Dy Chandrachud.CJI Chandrachud has, up until now, maintained a rather temperate stance on the collegium system saying that no institution is hundred percent perfect in a Constitutional democracy and that the collegium system shouldn't be singled out."We (judges) work within the existing framework of the Constitution and we are faithful soldiers who implement the Constitution," he said at the Constitution Day celebrations at the Supreme Court premises on November 25. On a related issue of lawyers going on strike to protest transfers of judges, both CJI Chandrachud and Rijiju were on the same page, more or less, opining that while the lawyers have every right to protest, it is the common man seeking justice who suffers due to such protests..But the events at the Rajya Sabha on December 15, did cause some friction between the two. The first issue related to the Law Minister's remark that long court vacations were a source of inconvenience for litigants and that he would convey the message to the judiciary.The next day, the CJI made it emphatically clear that there would be no departure from the established practice of not having vacation benches during the two-week winter break (dedicated vacation benches sit in Supreme Court only during the longer summer vacation). .The other issue was over the Law Minister's statement that considering pendency, a Constitutional court like the Supreme Court of India should not hear bail applications and frivolous PILs.The next day, a bench headed by the CJI, said in court that it is duty bound to act in matters of personal liberty and grant relief. "If we do not act in matters of personal liberty and grant relief then what are we doing here? What is Supreme Court doing and is it not a breach under Article 136. Supreme Court exists to hear to the cry of such petitioners. We burn the midnight oil for such cases," he said.The CJI, who had taken a decision a month prior, to list 10 bail and transfer cases before every bench each day, reiterated this view while delivering the Ashok Desai Memorial Lecture saying, "Sermonising apart, trust us to be the guardians of the liberty of the citizens of this nation." .Maybe it was the spirit of Christmas or maybe it was a result of sage advise from other quarters, but on December 26, Rijiju exhibited a more measured approach while speaking at the 16th National Conference of Akhil Bharatiya Adhivakta Parishad. He emphatically stated that the Narendra Modi government would not ever encroach upon the domain of the judiciary and that any whispers of friction are manufactured by the opposition."You hear that there is friction between executive and judiciary and that the government is trying to take the judiciary under its grab. Some political parties make such statements and at times news channels do it to keep masala in the news. But PM Modi has always said that the Constitution is the most sacred book and the country will run by the Constitution," Rijiju said.About the collegium tussle, Rijiju seemed to attempt to reframe the same saying that his concerns were less about the executive's role in appointing judges and more about the accountability of judges to the public at large. "A judge is not chosen by anyone and is here because of their system. So whatever a judge does is not open to public voting but indeed there is public scrutiny. We are working for the public and those who are working in judiciary must also think that in some way or other they are also answerable to the public," said Rijiju..Perhaps this is the version of the Law Minister that 2023 will witness, but with the next general election set to fall within CJI Chandrachud's tenure, tensions could also rise. On a few aspects at least, the current CJI and Rijiju definitely concur such as the need for better judicial infrastructure, more technological innovations, paperless courts, and digital services. It is on these fronts that we can hope to see more concrete action in 2023 from the executive and judiciary working in tandem, without crossing any lakshman rekhas.