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Rein on court observations

New Delhi, Nov. 30: Union law minister Ashwani Kumar today said the government was determined to come out with a provision to restrain judges from making observations that are not connected with the cases.

He also confirmed that a new commission would be set up to appoint judges of the Supreme Court and high courts, replacing the current collegium system under which the five senior-most apex court judges choose the nominees.

Kumar repeatedly asserted that the move on observations was “not in any manner intended to gag the judges”. The restraining provision will be incorporated in the proposed Judicial Standards and Accountability Bill, he added.

The decision comes against the backdrop of not only stinging rebukes and remarks by some judges in several corruption scandals but also certain comments that have been perceived as interference in the policy domain.

Kumar said: “I categorically clarify nothing in the bill should be treated as a gag order. It will only reiterate the Supreme Court’s judgments in a number of cases that courts must refrain from making observations where such observations are not required.

“It is nothing new. The Supreme Court itself has said that it is inherent and integral to judicial decorum that judges do not make observations not strictly required for a decision of the case. It is not a gag order but is a principle reiterated by the Supreme Court.”

The minister did not mention any particular case. But the Supreme Court had said in a case in which a high court in Uttar Pradesh was accused of making caustic observations against a magistrate: “The sanctity of the decision-making process should not be confused with sitting on a pulpit and delivering sermons which defy decorum.”

Kumar said: “We remain totally, irrevocably and unquestionably committed to maintain and preserve the independence of the judiciary. We want to be in constructive engagement with the judiciary.”

Reminded that there was no restriction on parliamentarians making observations, the minister said: “If judges want to become parliamentarians, they can become parliamentarians.”

He said there was a wide political consensus that the present collegium system should be replaced with a commission to appoint the best judges.

To a question, the minister initially said that besides the Prime Minister, the proposed commission would have the leader of the Opposition as member. However, on the intervention of an official, the minister hastened to add: “I stand corrected. It will be headed by the Chief Justice of India. It is still being worked out and is being looked into.”

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