Friction between the Government and the Judiciary

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    • There is always a conflict going on between the Government and the Judiciary over appointments in judiciary where the Government is supporting NJAC and judiciary supporting the collegium system. 
      • The collegium system of making appointments to the higher judiciary has come under focus largely due to critical remarks made by the Union Law Minister. 

    Background

    • Memorandum of Procedure (MoP) 
      • The procedure for appointment of judges to the Supreme Court and the High Courts in accordance with the Collegium system was laid down in the Memorandum of Procedure (MoP) prepared in 1998. 
      • It states that the initiation of a proposal for appointment of Supreme Court judges vested with the CJI and that of High Court judges with the Chief Justice of the High Courts concerned.
        • The MoP required the Chief Justices of High Courts to initiate the proposals six months prior to vacancies.
    • The Constitution (99th Amendment) Act 
      • It was passed by Parliament to provide for a National Judicial Commission, which was duly formed by the NJAC Act.
      • In 2015 the court struck down the NJAC Act and the Constitution Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.
    • Revised MoP: The court directed the government to finalize a revised MoP in consultation with the CJI and the Collegium. 

    What was the NJAC? How did it differ from the collegium system?

    • Parliament passed the Constitution (99th Amendment) Act 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent commission to appoint judges to the Supreme Court and high courts to replace the collegium system.
    • Articles 124 and 217 of the Constitution deal with the appointment of judges to the Supreme Court and high courts of the country.
      • Article 124(2) states every Judge of the Supreme Court shall be appointed by the President after consultation with the judges of the Supreme Court and the high courts as the President may deem necessary. 
      • While the collegium system itself does not figure in the Constitution, its legal basis is found in three Supreme Court judgments usually referred to as the ‘Judges Cases’ concerning the higher judiciary.
    • To replace the system, which received criticism over the years for its lack of transparency, the Constitution (99th Amendment) Act, introduced three key Articles- 124 A, B, and C and amended clause 2 of Article 124.
      • Article 124A created the National Judicial Appointments Commission (NJAC), a constitutional body to replace the collegium system.
      • Article 124B vested in this NJAC the power to make appointments to both the Supreme Court and the various high courts.
      • Article 124C accorded express authority to Parliament to make laws regulating the NJAC’s functioning.
    • NJAC was to be composed of:
      • The Chief Justice of India as the ex officio Chairperson.
      • Two senior-most Supreme Court Judges as ex officio members.
      • The Union Minister of Law and Justice as ex officio member.
      • Two eminent persons from civil society (to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India and the Leader of Opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women).
    • The Chief Justice of India and Chief Justices of the high courts were to be recommended by the NJAC based on seniority while SC and HC judges were to be recommended based on ability, merit, and other criteria specified in the regulations.
      • The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it.
    • Collegium system: a group of the senior-most judges makes appointments to the higher judiciary. This system has been operational for nearly three decades.

    Independence of Judiciary and the “basic structure” doctrine

    • The principle of the independence of the judiciary was derived from the theory of separation of powers, enshrined in Article 50. 
      • Dr. B.R. Ambedkar, the Chairman of the drafting committee, said in the Constituent Assembly: “There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. “
    • The “Basic Structure” doctrine meanwhile is a product of the Kesavananda Bharati judgment (1973). 
      • Article 368 grants Parliament a virtual plenary power to amend the Constitution but the Bench had held that the Constitution could not be read in a manner that destroyed or infringed the document’s basic structure.

    Government’s View

    • Delay in appointments: 
      • The Centre argues that the Collegiums, both at the Supreme Court and High Court levels, are delaying judicial appointments. 
      • The NJAC was a good law thwarted by the court.
    • Breach of time:
      • It says that the High Courts are not making recommendations six months in advance of a vacancy.
      • There are 332 judicial vacancies in the High Courts out of a total sanctioned strength of 1,108 judges.
    • Dilution of Power
      • The Centre argued that the Act in no way took away the primacy of the judiciary but diluted the power of the executive as only one member (Law Minister) was in the NJAC as opposed to three SC judges.
    • Basic structure doctrine
      • The Amendment was perfectly consonant with the basic structure as it strengthened the independence of the judiciary, checks and balances and democracy, which were all part of the basic structure.
    • Lack of transparency: 
      • Collegium was a failure and worked on a system of intra-dependence where there was no transparency.

    Supreme Court’s View

    • Current Law:
      • The court says the Collegium system combined with the MoP is the law as it exists now. 
    • Delay by the Government: 
      • The government has either kept Collegium recommendations pending for no apparent reason or it has repeatedly sent back names reiterated by the Collegium. 
      • The court accused the government of not appointing persons who are not palatable to it.
    • Unconstitutional
      • It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive.
    • Independence: 
      • The expectation from the judiciary to safeguard the rights of the citizens of this country can only be ensured by keeping it insulated and independent from the other organs of governance.

    Source: TH