India being a participatory democracy provides a clear bifurcation between the judiciary and the legislature, to facilitate effective checks and balances on the people in authority. On the contrary, the two most powerful arms of democracy have, however, witnessed a fierce battle on various occasions. The most prominent and topical issue dealt with the appointment of Judges of High Courts and the Supreme Court.
Soon after the Modi government came to power in 2014, the legislature passed the NJAC Act, 2014, through the 99th Constitutional Amendment Act, 2014. The purported Act made it imperative on the government to incorporate a National Judicial Appointments Commission (NJAC) for the selection of judges. The move infuriated the judiciary which alleged that NJAC would undermine the independence of the judiciary and give the executive too much power.
What followed was a tussle between the judiciary and legislature, with the Supreme Court ultimately declaring the NJAC Act and amendment as unconstitutional and void. Conversely to understand what formed the backdrop of this ferocious animosity, we have to devolve into the historical legal developments prior to the passing of NJAC.
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Brawl between the Judiciary and Legislature
The major brawl between the judiciary and the legislature came to public attention during the draconian regime of Prime Minister Indira Gandhi. At that time, the Constitution of India did not clearly define the role of the executive in the appointment of judges.
The government, led by the then Prime Minister Indira Gandhi, argued that the executive had the power to make appointments to the judiciary and that the Chief Justice of India’s (CJI) role in the appointment process was advisory.
However, the judiciary, led by the then Chief Justice of India Y. V. Chandrachud, argued that the judiciary had a “primacy” in the matter of appointments and that the executive should not have a veto power over appointments.
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First Judges Case (1981)
The diverse view on the legal position led to a longstanding legal and political scuffle between the judiciary and the executive. The initiation point of the dispute was marked with the filing of the writ petition in the Supreme Court, which ultimately resulted in the First Judges Case.
The First Judges Case (1981) was heard by a seven judge Bench of the Supreme Court, which provided the verdict by a 5:2 split. The Bench was concerned over the appointment of judges to the Supreme Court and High Courts in India. The main issue was whether the executive had the power to make appointments to the judiciary without consulting the Chief Justice of India (CJI) and the judiciary.
The government had argued that the executive had the power to make appointments to the judiciary and that the CJI’s role in the appointment process was advisory. Consequently, the majority held that the CJI should have a “predominant” role in the appointment of judges and that the executive should consult the CJI before making appointments.
The court held that the judiciary has a “primacy in the matter of appointments” and that the executive should not have a veto power over appointments.
Further, the court also held that the CJI should consult the two senior-most judges of the Supreme Court and the chief justice of the high court concerned before making appointments to the higher judiciary. Evidently, the court laid down the principle of “consultation” in the appointment of judges, which means that the executive should consult with the judiciary before making appointments and that the judiciary should have a primacy in the matter of appointment of judges.
This principle forms the basis of the collegium system of appointment of judges that was established by the Second Judge case.
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Second Judges Case (1993)
The landmark verdict of the Second Judges Case (1993) expanded on the principles established in the First Judges Case (1981). The case was heard by a bench of 9 judges of the Supreme Court, and the judgment was delivered by a majority of 7:2.
The main issue pertained to the interpretation of the principles laid down in the First Judges Case regarding the role of the Chief Justice of India (CJI) in the appointment of judges. The government had argued that the CJI’s role in the appointment process was advisory and that the executive had the power to make appointments to the judiciary.
The majority in the Second Judge case was of the view that the CJI should have a “primacy” in the appointment of judges and that the executive should not have a veto power over appointments. The court held that the CJI should consult a collegium of senior judges before making appointments and that the executive should not have a veto power over appointments.
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Third Judges Case (1998)
The Third Judges Case (1998) further builds upon the principles established in the previous two cases (First and Second Judges Case) concerning the appointment of judges to the Supreme Court and High Courts in India and the role of the executive in the appointment process. The case was heard by a bench of 9 judges of the Supreme Court, and the judgment was delivered by a majority of 7:2.
The issue in the instant case pertained to the principles laid down in the Second Judges Case regarding the role of the Chief Justice of India (CJI) in the appointment of judges and the composition of the collegium system. The government had argued that the CJI’s role in the appointment process was advisory and that the executive had the power to make appointments to the judiciary.
Contrarily, the majority in the instant case held that the CJI should have a “primacy” in the appointment of judges and that the executive should not have a veto power over appointments. The court further held that the CJI should consult a collegium of five senior-most judges of the Supreme Court before making appointments and that the executive should not have a veto power over appointments.
Moreover, the Bench provided that the collegium system of appointment of judges, which was established in the Second Judges case, should be composed of the Chief Justice of India, the four senior-most judges of the Supreme Court, and the Chief Justice of the High Court concerned.
The verdict established that the executive should consult the judiciary before making appointments and that the judiciary should have a primacy in the matter of appointment of judges. It also reaffirmed the principle of “collegium system” of appointment of judges, which means that the CJI should consult with a collegium of senior judges before making appointments to the higher judiciary.
The well established principle subsequently led to concentration of power in the hands of privileged individuals and groups. Consequently, the Modi government brought the NJAC Act, 2014 to expand the selection process which was also thrown in the trash box by the judiciary. The repercussion of the NJAC verdict has resulted in a never-ending dispute between the judiciary and legislature which even persists today.
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