As we know that any democratic country, the independent judiciary has a vital
role in administering justice and ensuring the rule of law and realization of
human rights in society but to achieve this purpose we need an independent
judicial system. An independent judicial system means a system that is not
controlled by the executive, legislative, or any private entities.
For a healthy judicial system, the independence of the judiciary plays a crucial
role in protecting the sovereignty of the constitution as well as judiciary. The
maker of our constitution envisaged absolute judicial independence from the
legislative and the executive. one of the eminent personalities of the law Mr.
Prashant Bhushan said that independence of the judiciary means independence from
the executive but not independence from accountability.
In the case of Keshvananda Bharti case
, the supreme court propounds a
doctrine of basic structure and it says that the constitution of a sovereign
state has certain characteristics that can't be erased by its legislature and
judicial independence is part of the basic structure so it can't be amended by
parliament. one of the most important factors for there has been always
conflicting between executive and judiciary for the appointment of judges of the
supreme court and high court. as stated in our constitution article 124 the
executive has the power to appoint judges in the higher judiciary after
consulting such judges as it may be required.
But in 1990 the apex court of the country through its infamous three judges
cases made the balance of power between executive, legislature, and judiciary
and create a system called the collegium system. the collegium system is a very
unique and unheard-of phenomenon in the global legal arena and it was created by
apex court through its infamous three judges cases law.
First judges case: in SP Gupta vs Union of India 1981 the supreme court said
that the concept of superiority of the CJI was not found in the constitution of
India so any proposal for an appointment in the high court can reject by any of
the constitutional functionaries mentioned in the article 217 of the Indian
constitution. the constitution bench also said that the word 'consultation'
which is mentioned in articles 124 and 217 was not bound, although the president
will consult these functionaries but is not bound to do so
Second judges case: In supreme court advocate - on - record advocates
association vs union of India 1993 the supreme court overturned the judgement of
SP Gupta vs Union of India and devised a specific procedure called the "collegium
system" the court said that the recommendation should be given by CJI with the
consultation of his two most seniors colleagues and executive has also had the
power to send collegium their recommendation for reconsider but if collegium
reiterates the recommendation then the executive will be bound to make the
Third judges case: in 1998 president KR Narayan issue a presidential reference
to the supreme court over the meaning of the term 'consultation' given in
article 143 of the constitution of India and ask the question of whether
"consultation" required consultation with several judges in forming CJI opinion
or weather sole opinion of CJI could by itself constitute a "consultation".
In response, the supreme court laid down nine guidelines and also form four most
senior judges instead of two in collegium and also said that if two judges were
decent with the recommendation then CJI should not send the recommendation to
the government. Ever since the collegium has been recommending appointing and
transferring judges in the high and supreme courts.
Representation under the collegium system:Perpetuating privilege or adequate representation
Currently, the collegium system is responsible for appointing judges in the high
court and the supreme court, but many legal scholars said that the collegium
system has many perpetuating privileges. some perpetuating privileges are
- The collegium is criticized for its unconstitutional behaviors it
nowhere mention in the constitution and has been evolved by the judiciary
itself for retaining the power to select itself.
- It has no proper written manual for functioning and also no official
procedure for selection so there is the issue of transparency
- The collegium system has not been able to prevent the vacancies of
judges and cases in the court so there is an efficient issue.
- The collegium system has also the problem of nepotism, sons and nephew
of judges or senior lawyers tends to be popular choice for judicial roles
The collegium system, the "lesser evil"
The collegium system is a very complicated system we can't clearly say that it
is good or evil instead of this it has some pros and cons
- the collegium system made the judiciary independent from politics and
also kept away from the influence of executive and legislative so they can
work without any fear or favor.
- the executive doesn't specialize or know about to requirements of the
judges as compared to CJI
- The system doesn't provide any proper guidelines to appoint judges in
the supreme court and the high court so there may create some sort of
nepotism and favouritism.
- The system leads to non - transparency in the judicial system, which is
very harmful to the regulation of the law
- In collegium system the appointment process is very slow so that create
burden on the judiciary so which leads to lots of pending cases
Executive and judiciary: Democratic Institution in conflict
The appointment tension between the judiciary and executive is very historical
the executive wants to control the power of the appointment process and he feels
that the collegium system is a severe compromise of parliamentary sovereignty
and disregards the mandate of the people that's why he tries to sack the
collegium system.IN 2014.
The executive introduce an act NAJC (NATIONAL JUDICIAL APPOINTMENT COMMISSION)
in this act there were different criteria for the appointment of judges, and a
commission will be formed. the commission was to comprise the chief justice of
India as a chairperson the other member included two senior-most judges of the
supreme court the law and justice minister and two eminent people to the
selected by the committee comprising of the chief justice, prime minister and
leader of the opposition.
The NAJC was seen as another attempt of the executive to hold the upper hand in
judicial appointment but in 2015 the constitutional bench of the supreme court
declared it unconstitutional because it violate the basic structure of the
constitution. So we can trace from the past event that the executive and
judiciary have some institutional conflict for power.
As we know that for the appointment of judges, the executive and judiciary
remain in conflict so there is some suggestion that may reduce the conflict
between the executive and judiciary. Some suggestions ate given below:
- In under the Atal Bihari Vajpayee government one committee is formed
named MN Venkatachalam Which gives some suggestions to reduce the conflict.
NJAC is one of the suggestions of that committee.
- Government of India should make written procedures and specific criteria
of age, and seniority to make some transparency of judges in the high court
and supreme court
- As we know that the US is the world's oldest democracy, if the
government of India want to take some suggestion, then they can take help
from the process of appointing the judges of the US, UK and France.
With the detailed analysis of the statute and article regarding the collegium
system, the executive played a key role in the appointment of the judges of the
supreme court and the high court before 1990 but first judge case and second
judge case make the base for the changing of power and third judge case properly
change the power of appointing of a judge from the executive and judiciary.
but as of now, some loopholes are found in the collegium system so for
transparency and the independence of the judiciary we have to address those
loopholes so the faith of the people in the judiciary doesn't shake.
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