The core of the problem between the Executive and the Judiciary lies in the concept of the “Judicial primacy”, which was bestowed on the collegium by the Supreme Court in the second Judge’s case in 1993 and further taken up in 1997 leading to the Memorandum of Procedure in 1999. The recent tension is the lingering effect of the same concept.
- Government’s position: The Executive has a distrust with the opaque Collegium system because it doesn’t have a constitutional back-up, neither it believes in the judiciary’s thought on merit recognition in judges selection, only by Judges. The executive wants an open, public accountable structure in which it also plays a part as far as appointments and transfer of judges is concerned.
However, since the government is the largest litigant the fear of compromise in independence and fairness of the process persists.
- Judiciary’s stand: Judiciary is of the view that an independent judiciary is the need of a democracy and a constitution to survive. It believes that by giving any such privilege to the executive in terms of affecting the process of appointments, the effectiveness of the process will be severely affected in terms of trials and influences by the party in The judiciary last year termed the National Judicial Appointments commission act as ‘unconstitutional’ but it accepted that collegium system needs reforms in terms of transparency and accountability.
- Pending Memorandum of Procedure: Judiciary based on it acceptance of collegium’s reform requested for suggestions from both the Public and the Executive. The amendment of memorandum of procedure is however stuck with the executive who is demanding a last say in the election of the judges based on national security and public interest which has become the bone of contention between the two.
To find an amicable solution:
- More channels of communication should be opened by the PM or the President to acknowledge and understand the limitations and conditions of both the parties.
- The troubling issue related with national Security and Public Interest should go for a wider consultation (e.g.- include parliament) instead of having the veto power with anyone party.
- Stakeholders from both the institutions should discuss and find out a middle path between the NJAC and the collegium system so that all the institutions of the constitution work in greater harmony.
The executive, the legislative and the judiciary are all highly dignified pillars of our democracy and pending decisions like these in Appointments of judges with several hundred open vacancies, at last affects the society’s belief in the state machinery in an unwanted way. A greater level of harmony between the three pillars will be the best bet.