Indian Polity is the very much integrated with the Current Affairs as it deals with the day to day governance of the Indian Government and the interpretations of constitution. The relationship of the Union Executive and the Union Judiciary is very important in the current scenario with respect to the judicial appointments.
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The Judiciary, at all levels, is overburdened with the pending cases and the irony is that the Judicial appointments are delayed due to the delayed approval from the Union Executive. Moreover the Executive is party in the largest number of cases which is also a cause of concern for the Judiciary.
Judiciary and Union Executive
Separation of power signifies the autonomy and independence of three organs of the government, i.e. legislative, executive and judiciary. Indian constitution has provided ample checks and balances to envisage the proper functioning of all these organs with our having any sort of pressure and fear of the others. There has been some friction between the executive and judiciary in India off lately, evident in the form of excess judicial activism by the judiciary and the appointments of judges by the judiciary itself. However, it is the appointment of judges, which has been in limelight in recent years and has been discussed under subsequent sub headings.
Process of Judicial Appointment
The judges of the Supreme Court and High Court in India are appointed by President as per article 124(2) and 217 of the constitution. The President is required to hold consultation with such of the Judges of the Supreme Court and of the High Courts in the States as he may deem necessary for the purpose.
In this regard, Article 124 (2) says: Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
In the above description, the word to look for is “consultation“. For the president to make appointment, consultation with these judges is must. Initially, the Chief Justice of India used to initiate the proposal for appointments, very often in consultation with his senior colleagues and his recommendation was considered by the President and, if agreed to, the appointment was made. However, President, as the constitutional head, acts upon the aid and advice of Union Council of Ministers.
Hence, practically, the proposal of the Chief Justice was to be acceptable to the government. There seemed to be a balance between the executive and the judiciary on the matter of appointments of judges of the higher judiciary during those times.
However, it all changed with the famous Three judges case (1982, 1993, 1998), which has ultimately defined the process of judicial appointments in at least last two decades. The court held that a Supreme Court judge can be appointed by the President only on the recommendations of the collegium system — a closed group consisting of the Chief Justice of India and the four most senior associate judges of the court. This has resulted in a Memorandum of Procedure laying down the process which is being presently followed for appointment of Judges to both the High Courts and the Supreme Court.
Executive say in the appointment
The Union Cabinet and Parliament have almost no role to play in the appointment of judges to the Supreme Court or to any of India's twenty-four high courts The position of Chief Justice of India is attained on the basis of seniority amongst the judges serving on the court. For the appointment of other judges of the Supreme court and the high court, The president is bound to appoint a judge as have been referred by the collegium of the judiciary. Hence, the core executive, i.e. the Prime minister and the council of ministers have no role to play in the appointment of judiciary. In fact, India is the only place where judiciary appoints itself.
Reasons of the Loggerhead
To fix the anomalies as described above, in October, 2015, the union government enacted National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment whose important provisions are given below:
However, declaring that the judiciary cannot risk being caught in a “web of indebtedness” towards the government, the Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment in entirety. The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.” It held that the collegium system, as it existed before the NJAC, would again become “operative.” However, the Bench admitted that all is not well even with the collegium system of “judges appointing judges”, and that the time is ripe to improve the 21-year-old system of judicial appointments.
This has led to a debate of authority between executive and the judiciary.
The Supreme Court had rejected the NJAC citing the new act to interfere with the primacy of the judiciary. However, “Primacy of the judiciary“ does not mean unilateralism or dictatorship of the judiciary. Even if primacy in appointments is given to the judiciary, there is nothing that prevents the executive or the legislature to have their say in the appointment of judges. Hence, it would be highly prudent for these two organs of the government to work in tandem and coherence for the welfare of this country.
This loggerhead of the judicial appointment between executive and judiciary can be resolved by owning the responsibility by both. The government at the Centre on its part should dilute its stand on NJAC and inform the Chief Justice of India that despite its reservations, it accepts the recent verdict of Supreme Court, and hence will faithfully implement the memorandum of procedure (MoP) as suggested by the court order of December 2015.
At the same time, Judiciary on its part can enable the collegium of judges headed by the CJI to inform the government at the Centre that it will in future recommend names of persons to be appointed as judges (of high courts and of the Supreme Court) as a united body, either unanimously or by majority and without discord.
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