The Constitution was drafted by the Constituent Assembly, which was elected by the provincial assemblies. After the Independence of our country, the scholars, legal luminaries and political class idealised of giving our country a Constitution which would ensure maximum freedom, including rights to choose their leader and where the Government will show responsibility and accountability of...
The Constitution was drafted by the Constituent Assembly, which was elected by the provincial assemblies.
After the Independence of our country, the scholars, legal luminaries and political class idealised of giving our country a Constitution which would ensure maximum freedom, including rights to choose their leader and where the Government will show responsibility and accountability of their actions.
Recently, the Supreme Court passed a judgment on National Judicial Appointment Commission (NJAC), which has created major tension between the political class and judiciary. In 2014, a bill was passed in Parliament for creation of NJAC which would take over the present system of appointment and transfer of higher Court Judges from the Collegium system. According to the Government, the NJAC would give transparency to the appointment of Judges in the higher judiciary. After this bill was passed by the Government, the Supreme Court Advocate-on Record Association challenged it in the Apex Court, stating that the NJAC Act and the 99th Constitution Amendment was unconstitutional. On 16th October, 2015, the Supreme Court in a judgment quashed the NJAC Act in a majority judgment. Since the verdict has been passed by the Supreme Court, there has been an outbreak between the political class and judicial system
If we look back in the history of constitution, a French scholar, Montesquieu pointed out that “placing power in the hands of only one organ or group in a government would entail tyranny”. The social scientist, scholars and thinkers have always believed that there should always be separation of powers for the successes of democracy and Government. Our Constituent Assembly, therefore in our Constitution clearly have separation of power. The separation of power has been the ‘basic structure’ of our Constitution.
In the judgment passed by the Apex Court, the part of selecting Judges is an internal part of the judicial system, where the judiciary has complete independence and this falls in the ambit of ‘basic structure’ of the Constitution. The Constitution of India grants independent judiciary where Judges have the final say on the appointments. Over the years, lots of questions have been raised on the functioning of the judicial system, and in which ‘Collegium’ system has been criticised, due to lack of transparency in the system.
In order to have a stable Government, the Constitution divides the Government powers between three distinct organs, namely, the legislature, the executive and the judiciary. This created independence of working separately, without intervening or overlapping of powers. This was done so that there could be harmony in the Government. There are few situations where these three constitutional organs have to work together, for example, where legislature and executive are closely related, where executive is responsible for the actions of legislature. Also, the judiciary has the power to adjudicate the law passed by the legislature and it could declare it unconstitutional if it so decides. People comment by saying that Judges are always protected by the Constitution but I feel the Judges are the ones protecting the Constitution.
I also personally believe that there are problems in the NJAC Act, the first problem is Article 124A, which tells us who all would be in the NJAC, like eminent persons and the Law Minister besides the Chief Justice of India and two senior most Judges of the Supreme Court. The definition of ‘eminent person’ in the NJAC Act was loosely worded, which was required to be clearly defined. The position for the Law Minister in NJAC is untenable as it would create political interference in the appointment of Judges. Yes, I do believe there is a very urgent need for the improvement of the present Collegium system. I do agree with the Government on one point where they have said that there needs to be transparency in the appointment of Judges.
All the three branches of the Government i.e. legislature, executive and judiciary have constructional obligation to work within the constitutional ambit without transgressing in any other area. The Supreme Court has already started working in this direction of improving Collegium system by inviting suggestion from all the stakeholders. The Apex Court should also take care of the concern of the executive. If this can be achieved, then I really don’t see any problem in the present system which is the Collegium system. If the Collegium system still doesn’t function satisfactorily, the Government still has the option to bring another bill on NJAC while taking care on the concerns raised by the Apex Court in its famous judgment on the NJAC.