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The Big Picture: Judiciary Vs Executive: How to Overcome the Distrust?



The Big Picture: Judiciary Vs Executive: How to Overcome the Distrust?



The confrontation between the executive and the judiciary continues to cause serious concern. The latest outburst of the Chief Justice of India few days back against the Government for delaying appointments to the higher judiciary has once again soured the relationship between the two. The larger issue of who should be appointing judges and how they should be appointed continues to be debated with the revised Memorandum of Procedure not being finalised as the Supreme Court collegium and the Government have been unable to come to a consensus.


Rather than being a case of distrust, this seems to be a struggle for power. There has always been a certain amount of creative tension but the NJAC judgement was the tipping point here. It seems that the Government has not fully reconciled to that judgement because of which there are roadblocks. When the Supreme Court delivered its NJAC judgement, it also acknowledged that there was much that was wrong with the procedures of the collegium. After inviting suggestions and holding detailed discussions on procedure, it was ultimately left to the Government to come out with MoP.

At the same time, the Supreme Court did not clarify that until the new MoP was put in place, the old system would continue. Therefore, the Government now uses this as a reason for sitting on appointments. But the CJI has questioned about the appointments being cleared piecemeal. Ideally none of the appointments should be done because this is giving an impression that Government is selectively appointing judges. At the same time, the Supreme Court also has a duty to see that a proper MoP is in place. It should not take 10 months of deadlock between the two sides to decide on this issue. There needs to be a face to face meeting among all the members of the collegium and the senior members of the Government so that this is thrashed out once and for all across the table.

The basic distrust emerged in 1970s when Mrs. Indira Gandhi asked for committed judiciary, committed press and committed bureaucracy. The supersession of judges that took place further increased it. Essentially, the executive wants judges of their convenience to be appointed so that it is easy for them to make changes in basic structure of the Constitution but the judiciary wants to stick to the right it acquired in 1993. The power of appointment in any system has a certain element of patronage although done on merit.

The consensus seems to be quite far. The 10 appointments which have been cleared recently cannot be called a knee jerk reaction on the part of the Government as the appointment of 35 judges in Allahabad High Court is still pending. The real issue is not about who appoints the judges. It is about how the judges should be appointed whether under the NJAC system or the collegium system. What is needed is even if the collegium system continues; the Supreme Court should ensure transparency which is unfortunately not the case. Even in case of MoP, the Supreme Court could have given basic guidelines to the Government to prepare it. An elected Government has a legitimate say in the entire system and if it does not have any say, it would try to achieve indirectly what it could not do directly.


Executive has to ensure judiciary that it is not going to curb judiciary’s independence. Judiciary has to understand that there are other organs namely executive and legislature which are equally responsible along with the civil society and press. Judiciary alone cannot safeguard democracy. Judicial independence is a part of basic structure of the Constitution. It is not conceivable unless the executive ensures that the strength of the judiciary is adequate to discharge its constitutional duty of rendering effective justice to all within a reasonable time.