Siddharth Kr & Shaurya Dutt
“Independent Judiciary is the Crown Jewel of our Constitutional Republic” – Brett Kavanaugh
This paper assesses the extent to which the political leadership formally, as well as informally, intervenes in the judiciary of modern-day nation state. This paper is written on the lines of Lord Acton’s view that “Power Corrupts & Absolute Power Corrupts Absolutely.” This paper also analyses the Article 50 of the Indian Constitution which elucidates that separation of judiciary- one direct provision which ensured the independence and no interference from the political and bureaucratic executive. The courts today are not free from political intervention, especially the higher judiciary, so the authors try to analyze this situation by various cases. It is recognized worldwide that an independent judiciary is the sine qua non of democracy and good governance. However, without separation of the judiciary from other organs of the state, absolute independence of judiciary is not possible. The paper first discusses about how the credo of separation of powers, rule of law & independence of judiciary has fizzled due to the meddling of the political leadership. Today, courts of law are becoming the major players in the political landscape of the Indian subcontinent. This paper seeks to examine the causes and consequences of this new trend with meticulous allusion to India. This paper hence conjectures on the lines of a saying by a renowned scholar James Madison, “The accumulation of all powers, legislative, executive, judiciary, in the same hands may justly be pronounced as the very definition of Tyranny.”
All the three organs of democratic framework are critical in their individual way. In any case, judiciary is viewed as the most critical. Equity must not exclusively be done – it must be believed to be finished. It is imperatively essential in a vote-based system that individual judges and the judiciary in general are unbiased and autonomous of every single outer weight and of one another so the individuals who show up before them and the more extensive open can have certainty that their cases will be chosen decently and as per the law. Legal autonomy does, in any case, imply that making a decision must be allowed for judges to practice their legal forces without impedance from disputants, the State, the media or influential people or elements, for example, vast organizations. This is an imperative rule since judges regularly choose matters between the native and the state and among residents and incredible elements. The Constitution of India embraces different gadgets to guarantee the autonomy of the judiciary with regards to both the principles of established and Parliamentary sway. In India, the judiciary has the ability to issue writs for the sake of habeas corpus, prohibition, mandamus, quo-warranto and certiorari. The procedure of appointment of judges likewise guarantees the freedom of judiciary in India. The Supreme Court of India was inaugurated on January 28, 1950. It succeeded the Federal Court of India which was set up under the Government of India Act, 1935.The framework through which the judges of the Supreme Court/High Courts are delegated and exchanged is called “Collegium System”. The Collegium framework is one where the Chief Justice of India and a gathering of four senior-most judges of the Supreme Court suggest arrangements and exchanges of judges. Collegium framework is a procedure through which choices identified with arrangements and move of judges in Supreme Court and High Courts, and not by an Act of Parliament or by an arrangement of the Constitution.
The Imperatives of Democracy
Meaning of Democracy
The idea of democracy has existed in the tradition of western political thought since ancient times. The term ‘democracy’ was first used in the fifth century BC by the Greek historian Herodotus in the sense of ‘rule by the people’. This term is derived from a combination of two Greek words: demos, meaning ‘the people’, and kratien, meaning ‘to rule’. Abraham Lincoln’s famous definition as ‘government of the people, by the people, for the people’ is very close to its literal meaning. In short, democracy as a form of government implies that the ultimate authority of governance in this system is vested in the ordinary people so that public policy is made to conform to the will of the people and to serve the interests of the people.
Pillars of Democracy
Legislature, Executive and Judiciary are viewed as the three Pillars or Columns of our democracy; an additional one being Media. All four together constitute what is called “The Check and Balance” wings to keep the Governance of our Democracy on even keel.
Legislature is supreme in the sense that it is constituted by people’s representatives directly elected by the public. Its fundamental duty is to make laws remembering public welfare.
Executive is the cabinet based on the principle of joint responsibility. This entity is the ‘Rulers’ who direct the destiny of the nation. It is generally formed by a party or a coalition of parties representing majority numbers in the Legislature. It executes a political party’s Policies and program in case of a single party rule or what is called the ‘Common Minimum Program’ if there is a coalition of parties. It applies a political party’s Policies and program in case of a one-party rule or what is called the ‘Common Minimum Program’ if there is a coalition of parties.
Judiciary ensures that Rule of Law prevails. It even reviews the constitutional validity of a law passed by the Legislature and consented to by the President of India. Thus, the judiciary is heavily loaded with a very high and special responsibility.
Bureaucracy is the one which implements all the decisions given by the above three wings. This is why bureaucracy is known as the real vehicle of governance. Without this structure the policies, programs and judicial orders remain only on paper and hence this constitutes what is in popular parlance termed as ‘Public service’.
Separation of Powers- Drawing the Dividing Line
To deal with a topic like this, we have to accept some basic principles. These are that in a written constitution, quasi-federal in character, the three organs of state are equal and having coordinate powers, with the power of legislation being distributed between a central government and the state governments. This brings us to the reason of the existence of a Supreme Court to maintain the checks and balances. The three organs of the State are equal and coordinate through a broad division of powers would not be entitled to intrude upon the area, jurisdiction and power given by the Constitution.
In the words of the great constitutional law writer, Dr. Durgas Das Basu,
“So far as the courts are concerned, the application of the doctrine (the theory of separation of powers) may involve two propositions: namely,
- that none of the three organs of Government, Legislative Executive and Judicial, can exercise any power which properly belongs to either of the other two;
- that the legislature cannot delegate its powers.”
He has, therefore, summed up the basic foundation of the theory of separation of powers, unlike Montesquieu who had a far more complicated and difficult approach in this.
Meaning of Separation of Powers
Wade and Philips further laid down three conditions for separation of power to be absolute and in the interest of rule of lawalthough they are practically and theoretically not possible. The main idea of the separation of forces would mean that the following rules shall apply.
Rule 1 – That the same person should not be a part of more than one of the three organs of government.
Rule 2 – That one organ of government should not control or interfere in the work of another.
Rule 3 – That one organ of government should not exercise the functions of another.
The Legislature has been agreed high-regard throughout and not just in the Indian Constitution. It basically deals with order of general guidelines of law that are regarding to all parts of the behaviour of its natives and establishments. The Parliament of India is consisting of two bodies, Lok Sabha (Lower house) and Rajya Sabha (Upper house). It orders laws, force assessments, approves obtaining, and gets ready and actualizes the monetary allowance, has sole right to announce war, can begin examinations, particularly against the official branch, names the leaders of the official branch and in some cases, selects judges and in addition it has the ability to approve settlements. By making the official responsible to the common house, the Constitution guarantees a legitimate system of governing rules to the precept of detachment of forces. The whole structure has different features which help to accomplish the same. Therefore, this brings into inquiry the part of the other two columns: the legal and the Executive. There are many cases where power of legislative power has been transferred expressly or impliedly to executive like delegation of legislation.
The leaders who designed our Constitution drafted it so carefully that it accommodates a free and fair Judiciary as the mediator of the Constitution. The higher legal in India, particularly the Supreme Court, the most intense legal on the planet, has turned into a center of debate over its part in fascinating and choosing open interest-petitions. In choosing these petitions, the legal issues numerous bearings to the Government which incorporates confining of enactment in numerous zones. What’s more, if so, is the situation, then what is the authenticity of activity of such powers? The part of the legal ought to just be restricted to investigating the dependability of the enactment and not guiding the legislature to establish the enactment. The degree of legal review does not expand past enquiring about a criticized performance.
The three organs of democracy need to practice their capacities remembering certain constitutionally assigned encroachments. However as indicated by Subba Rao C.J. in Golak Nath v. Condition of Punjab : “the Constitution demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them, no authority created under the Constitution is supreme; the Constitution is incomparable and every one of the powers capacities under the incomparable tradition that must be adhered to.”
Later if any of the three organs try to grow their area, it would take after an unavoidable clash and influence the symphonious tractability of the tripartite arrangement of government. No organ needs to control over the activity of forces and elements of another, unless the Constitution entirely so orders. The Honorable Supreme Court has itself said that the idea of Separation of forces is an “essential component” of the Constitution. So, if one infringes the area of the other, it would be an unmistakable infringement of the fundamental structure of the Constitution and legal is not an exemption to the same.
Pathak in Bandhua Mukti Morcha v. Union of India 527 said: “It is a common place that while the Legislature enacts the law the Executive implements it and the Court interpret it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the validity of the legislation itself. And the Court, in its duty of interpreting the law, accomplishes in its perfect action in a secondary degree of legislative exercise. Nonetheless a fine and fragile balance is envisaged under our Constitution between these primary institutions of the State”.
Now, one can easily say from the above that one may exercise the other one’s function up to a limited extent but the issue that predates the Indian picture is whether this system is working in a well-balanced manner or not.
The Executive has many powers. It can veto laws, can summon of the military, makes decrees or declarations (like declaration of emergency) and declare legitimate regulations and official requests, can decline to burn through cash distributed for specific purposes, can choose judges and appoints judges, and has the power to grant pardons to convicted criminals (under art 72, President can pardon the death sentence). Like the other two mainstays of majority rule government, the Executive is similarly expected that it would be free of interruptions from the other two. It is said that Executive is independent of the two but it is not true on the ground. It’s not that the question of responsibility pops up only in the case of executive. The legal and governing body are just as responsible, however in their cases, an inherent framework from inside would be accessible for releasing those capacities.
The constitution of India allocates executive powers to the President and Governors (Article 53 (1) and Article 154 (1), they are given certain legislative powers (Articles 123, 213 and 356) and certain judicial powers (Articles 103 and 192). Similarly, the legislature enjoys certain judicial functions (Articles 105 and 194) and judiciary exercises few legislative and executive functions (Articles 145, 146, 227 and 229). However, the judiciary is made separate from the executive in the public services of the State (Article 50). In some states, complete separation of judiciary from executive has been achieved through legislation. In seven states, complete separation of judiciary from executive has been affected through executive orders.
NJAC Act: Is It The Quintessential Panacea ?
Composition of the Collegium
The Supreme Court Collegium is headed by the Chief Justice of India and comprises four other senior most judges of the court. A High Court Collegium is led by its Chief Justice and four other senior most judges of that court. Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegiums.
Functioning Of the Collegium System
The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium. The Central Government does the fact checking and investigate the names and resends the file to the Collegium. Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.
National Judicial Appointments Commission
In 2015, the Parliament passed a law to replace the collegium with a National Judicial Appointment commission (NJAC). This was struck down as unconstitutional by the Supreme Court, in the Fourth judges’ case as the new system would undermine the independence of the judiciary. The National Judicial Appointments Commission (NJAC) is a constitutional body proposed to replace the present Collegium system of appointing judges. The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014. Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015. It would consist of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination. The Chief Justice and two senior-most judges could veto for appointment to a judicial post if they did not approve of it. Once a proposal was vetoed, it cannot be revived. At the same time, the judges require the support of other members of the commission to get a name through. By a majority opinion of 4:1, on 16 October 2015, Supreme Court struck down the constitutional amendment and the NJAC Act restoring the two-decade old collegium system of judges appointing judges in higher judiciary. Supreme Court declared that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering of the basic structure of the constitution where parliament is not empowered to change the basic structure. However Supreme Court has acknowledged that the collegium system of judges appointing judges is lacking transparency and credibility which would be rectified or improved by the Judiciary. Arguments against NJAC were based on the three landmark judgements that safeguarded the collegium system, namely, the first, second and third judges’ cases. The first judges case decided in 1981 gave power to the President to refuse the judges’ names recommended by CJI. Twelve years later, this position was reversed by a decision of Justice J.S. Verma under the second judges’ case which extended primacy to the judiciary. In 1998, this principle was cemented by the Supreme Court, laying down guidelines for effective working of the collegium system. They argued that the right of appointment of judges lays at the core of the independence of the judiciary and formed a part of the basic structure of the Constitution. The landmark judgements were binding and could not be over-ruled by amending the Constitution.
Mukul Rohatgi – Former Attorney General of India
During the course of a bunch of hearings challenging the constitutionality of the NJAC, the then Attorney General of India, Mukul Rohtagi, told the five-judge bench that “the collegiums system is dead & buried forever, & would not be revived even if the bench quashed the NJAC.” He then argued that “Independence of judiciary is protected under the basic structure through many facets, and is not drawn by the appointment of judges alone.” “The Constitution has devised a structure of power relationships with checks and balances wherein limits are placed on the power of every authority or instrumentality under the constitutional scheme,” said the Indian Government’s Chief Legal Adviser.
Nepotism in Indian Judiciary
The collegiums system has come under a fair amount of criticism. In the year 2009, Law Commission of India said that nepotism and personal patronage is prevalent in the functioning of the Collegium System. Collegium System is recommending the appointment of the judges without considering the talent available in the market. If the constitution makers had liked this way of appointment of judges, they would have envisaged it in the original constitution itself. Collegium System could not appoint judges as per the vacancies in the courts due to various reasons. In spite of being a democracy, the judges appoint judges in India. Collegium System is not a healthy practice for a democratic country like India. The Collegium System is not the constitutional system so the central government should make appropriate laws to pull out the Indian Judicial System from the monopoly of some families.
Assertions Inimical To National Judicial Appointments Commission
Being scholars of a National Law University, the authors would quote the statement made by judiciary Professor Faizan Mustafa, Vice-Chancellor of NALSAR University Of Law, Hyderabad, he said that, “The independence of the judiciary is not the private right of judges; it is the right of citizens. Ultimately, judicial legitimacy rests on public confidence in the courts. Appointment of judges is seen as a crucial mechanism to achieve judicial independence. Judges must be independent of executive, senior judges and in their ideology.” The authors truly abide by Professor Mustafa’s argument. Even today, if there is verbal quash among people that takes up heat, they convey to each other that “I will see you in Court.” People think and truly believe that if the government will not listen to their demands, the executive branch, i.e., the bureaucracy will not listen to their demands, it is the judiciary that will listen to them, listen to them and provide justice to them.
Hon’ble Justice V.N. Khare, Former Chief Justice of India, said that, “There is nothing bad with the collegium system. It is, in fact, superior to the NJAC in many ways. It will also be unfair to say that it is not transparent. But yes, it can be further improved by making it more transparent”. Adding, he said that “the government passed the NJAC Act in undue haste and without consulting the judiciary.”
Senior Advocate, Shahid Ali, Delhi High Court, said that, “the attempt to interfere in the independence of judiciary through the NJAC will prove to be fatal for the democracy and detrimental for fundamental rights guaranteed in the Constitution.”
The authors firmly believe that the credo of independence of judiciary is visible only in the lower judiciary, from the JMFC Court (Judicial Magistrate First Class) to the senior most judge of the district, the District & Sessions Judge Court, because the cases here are the ones which lack political influence per-se. But, if we talk about the High Courts & the Supreme Court itself, there is huge political impact as the large number of litigations there in these higher courts is of service matters, writs, issues of national importance, which are in a beeline connected to the government or the executive, which is because of these courts’ original jurisdiction. Judicial Independence plays a vital job in keeping up the equitable set-up of any country. The Judiciary goes about as a defender of privileges of the natives ensured by the tradition that must be adhered to and the constitution. Every vote-based nation receives different intends to guarantee opportunity of the judiciary and subsequently to guarantee singular opportunity. An unprejudiced and autonomous legal framework alone can secure the privileges of the residents against the self-assertive forces of the official or governing body. Legal freedom is vital whether the judge is managing a civil or a criminal case. So, the instruments for legal arrangement assume a critical job in choosing the people having the expert aptitudes and characteristics that are required for judges in a free & independent judiciary. An essential necessity of continuing open trust in the judiciary is the receptiveness and straightforwardness in delegating judges. Receptiveness and straightforwardness in making appointments basically rely upon the systems for appointment of judges. There are no prescribed norms regarding the eligibility criteria or even selection criteria. The NDA government has tried twice to replace the collegiums system with National Judicial Appointments Commission (NJAC) to address the concerns but failed and the Collegium system still prevailing but the parliament has slowed down the process of appointment and is drafting the MoP (Memorandum of Procedure) to guide future appointments so that concerns regarding lack of eligibility criteria and transparency could be redressed.
The Collegium System for judicial appointment may have a few points of interest and inconveniences and consequently, no specific framework can be treated as the best framework, so as to keep up open trust in the appointment framework and judicial independence.
 Students of B.A.LL.B (Hons.) 1st Year At H.P. National Law University, Shimla
 E.C.S. Wade, C.Godfrey Phillips, Constitutional law, Vol 18 no. 8
 John Locke, Two treatise of Government, pp 2.149 & 2.150
 Golak Nath v. Condition of Punjab A.I.R. 1967 S.C. 1643
 Bandhua Mukti Morcha v. Union of India & Ors.(1997) 10 SCC 549