The recent comments by Law Minister Kiren Rijiju and Vice President Dhankhar have re-opened the debate on the appointment of judges in the country. Amidst this controversy, we look at the long battle between the executive and judiciary over judicial appointments. In this article, we look at arguments from both sides, some important legal doctrines, and concepts.
What is the issue?
Recently, a letter to the Chief Justice of India by the Law Minister was in news all over. It was believed that the letter stated a need for having government nominees in the collegium for the selection of judges.
However, later, the Law Minister issued a clarification that the government asked the court to have government nominees in the search committee (and not the collegium) that prepares the panel of eligible candidates. He further stated it was a “precise follow-up action” to the court’s own decision in the NJAC case in 2015.
The incumbent government has on a number of occasions blamed the current system of appointment of judges – Collegium System – for causing delays in the appointment of judges and increasing the pendency of cases.
Similarly, Vice President Dhankhar shared his views on the appointment of judges and stated that SC’s decision on striking down NJAC is in violation of “parliamentary sovereignty.” He went ahead and criticized the constitutional doctrine of basic structure for disregarding the will of the people, which is the foundation of democracy.
| Government’s argument on NJAC | Court’s argument on Collegium |
| Appointment of judges needs to be done in an open and transparent manner. | Independence of the Judiciary is paramount. Government interference will violate it. |
| Basic structure doctrine is in violation of parliament sovereignty and people’s will. | Violation of independence of the judiciary also violates the basic structure doctrine. |
What is parliamentary sovereignty?
Parliamentary sovereignty is a concept of some constitutional democracies. It means that the legislative body (Parliament) has absolute sovereignty and is supreme over all other government institutions, including executive or judicial arms of the government. It also means that the legislative body may adopt or change or repeal any law and is not bound by any written law.
However, it is important to understand that in India, Parliament is not sovereign. It is the Constitution of India that places sovereignty into ‘We the People’, which is exercised by divesting powers between the legislature, executive and judiciary. It also underlines and separates the powers of each of these organs of the government.
The powers of the legislature (such as lawmaking) are also subjected to the test of constitutionality. Meaning if any law (made by the Parliament) is in violation of the Constitution, the Supreme Court and High Courts have the power to strike it down.
What is collegium system?
Article 124 of the Indian Constitution talks about the appointment of judges.
It says that President in “consultation” with judges from the Supreme Court and High Courts has to appoint the higher judiciary.
Collegium is a body of five senior most judges of the Supreme Court of India, including and headed by the Chief Justice of India.
The Collegium recommends the name, and the President has to appoint it.
It is also very important to understand that the word “consultation” here means “concurrence” – meaning that President is constitutionally mandated, while making the appointments, to act on the recommendation made by judges. In other words, the say of judges in appointments is final, leaving no scope for the government to interfere.
What is NJAC system?
Union government proposed an alternative way of appointing the judges in the form of the National Judicial Appointments Commission Act (NJAC), 2014 for ensuring transparency in the appointment of judges, avoiding delays in their appointment and enhancing efficiency of the judicial system. The government proposed a formation of a commission for the appointment of judges. The composition of NJAC comprised of:
- Chief Justice of India
- 2 senior-most judges of the Supreme Court
- Law Minister of India
- 2 eminent members that are chosen by the Selection Committee
However, in 2015, the SC decided to strike down the NJAC as in its current form it did not only interfere with the independence of the judiciary and violated the basic structure of the Constitution but was also structurally flawed.
What is basic structure doctrine?
This famous doctrine was propounded in 1973 in the case of Kesavananda Bharati. The doctrine simply means that Parliament cannot introduce laws that alter the basic structure of our Constitution and these include aspects like fundamental rights, federal structure, democratic governance, separation of powers, unity and sovereignty of India etc.
Any law aimed at changing this basic structure of the Constitution shall be eligible for getting struck down.
Rishabh is a lawyer and writer working in climate change, health and social justice. He is a Co-founder and Editor-in-chief at TA. Rishabh tweets at @Writer_Rishabh.
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