The Diminishing Lakshman Rekha: the ongoing executive and judiciary tussle

This article has been written by Abhipsa Upasana Dash. Abhipsa is a third-year student at Symbiosis Law School, Noida.

Populism based on opposition between an elected legislature and the judiciary does not bode well for a democracy based on rule of law.The American social scientist Edward Shils, had shown, a long time ago, that populism is based on this opposition between the legitimacy of the elected politician and the legality enshrined in a Constitution whose custodians are the judges. Democracy without the rule of law quickly degenerates in mobocracy and eventually, even elections cannot be organized fairly.

Once in power, the Modi government introduced a bill in Parliament, which was intended to put an end to the collegium system (in a nutshell, this involved judges appointing judges) and to create a National Judicial Appointments Commission (NJAC). The commission would have comprised the Chief Justice of India (CJI), two other senior judges of the Supreme Court, the law minister and two other “eminent” persons appointed by a committee consisting of the Prime Minister, the CJI and the leader of the opposition. The NJAC would have been responsible for the appointment and transfer of judges to the higher judiciary. The Commission was established in August 2014 through the 99th amendment to the Constitution of India. The Bill was passed and approved by more than 16 states. But in October 2015 the Supreme Court decided to strike down this reform and to revive the collegium system in the name of the independence of the judiciary.

A collegium is a group of five of the senior-most judges of the Supreme Court – including the Chief Justice of India – who decide the appointments and transfers of judges to the apex court and the high courts. The Constitution of India, however, does not sanction this system.

Article 124 of the Constitution stipulates that judicial appointments to the Supreme Court must be made by the President in consultation with the CJI and other senior judges of the SC and the high courts. Similarly, Article 217 says that high court judges are to be appointed by the President, the CJI and the governor of the concerned state. This balance between the executive and the judiciary began to see-saw after 1981, when the first of the legendary “Three Judges Cases” on judicial appointment systems took place. In that first case, the Supreme Court had ruled that the CJI’s recommendations of judges could be refused if the president had “cogent reasons”. This tipped the scales in favor of the executive, giving it a greater say in the appointments of judges.

The second of the three cases concluded in 1993, when a nine-judge SC bench that included Justice JS Verma overturned the 1981 judgement. The bench ruled that the Chief Justice of India must have a “primal” role in the appointments of judges and that the executive could not have an equal say, or else it could lead to “indiscipline” in the judiciary.

This verdict led to dissent and confusion within the judiciary, but it also gave birth to the collegium system, which was further reinforced by the third of the “Three Judges Cases” in 1998. This judgement came through another nine-judge bench, which emphasized the judiciary’s upper hand over the executive in judicial appointments.

What is the National Judicial Appointments Commission system?A growing dissatisfaction with the collegium system, which completely pushed aside the President and the government in the process of appointing top-ranking judges, eventually led to the proposal of a National Judicial Appointments Commission as a more balanced alternative in line with the Constitution. Collegiums, all through their existence, had been accused of favoritism and corruption of failing to fill in the many vacancies of judges in the Supreme Court and high courts – which was adding to the huge backlog of unheard cases in Indian courts.

The NJAC, on the other hand, was proposed as a body that would comprise the CJI (as the chairperson), two senior SC judges, the union minister of law and justice and two other eminent persons nominated by the Chief Justice, the prime minister and the leader of the opposition (or the leader of the single largest opposition party). Collectively, they would represent both the executive and the judiciary while selecting judges for top appointments.

The National Judicial Appointments Commission Act was swiftly passed by both houses of Parliament in August 2014, and was given the President’s nod in December 2014. By April 2015, the NJAC Act was notified along with the Ninety-Ninth Constitutional (Amendment) Act, which amended Article 124 A of the Constitution to accommodate the Commission. While the NJAC Act was being passed, however, opposition to the new system began piling up in the Supreme Court in the form of protest petitions, which are now being heard by the five-judge bench under Justice Khehar.

Regardless of the collegium and the NJAC, a gaping 47% vacancies in the major courts across the country raises serious debate over the motive of government behind raising such issues. Hence the tussle of the judiciary over supporting the collegium or the NJAC is going to be more dramatic in coming months.


The December book bucket

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