By Anmol Sinha, Symbiosis Law School, Pune.

Our society is supported by three different pillars, Legislature, Executive and Judiciary. Legislature enacts the law which governs us; Executive executes and implements the laws and Judiciary is the body which takes into account the violations of such laws. It is this clear cut demarcation of various organs of the state, which helps to govern the society smoothly. This broad classification of working simplifies the otherwise complex nature of work to be done by the state. It clarifies which work, is under the ambit of which organ of the state and serves the purpose of proper categorization of the work.

However, when looked from a more practical point of view, in a country like India the various organs cannot work in separate watertight compartments. They cannot restrict their work in strict sense of meaning, and there are instances when one part needs to step into the shoes of another and play its role. Delegated Legislation is an example of it, where as the need arises, Executive within certain restrictions, exercise the functions of Legislation in order to expedite the process of governance. This act is permissible to a small limit, as it is for the speedy governance. However any act or step on part of any organ, which overreaches this limit and performs any function which is primarily the domain of another organ, violates the principle of separation of power.

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Newly enacted Constitution (Ninety – Ninth Amendment) Act, 2014 is an example of such overreach as it is against the spirit of principle of Separation of Power. It allows Executive to have dominance over the Judiciary in manner of selection of persons who would be appointed as members of Judiciary resulting in violation of Independence of Judiciary.

The concept of independence of Judiciary has been explained by the Honorable Supreme Court in array of cases.

The Honorable Court in S.P Gupta v President of India and Ors[1] held

 “The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive and therefore it is absolutely essential that the judiciary must be free from executive pressure or influence

Justice Kuldip Singh in case of Supreme Court Advocates-on-Record Association and another v Union of India[2] elaborated on the principle

The independence of judiciary is inextricably linked and connected with constitutional principle of appointment of judges”

In Union of India v. Sankalchand Himatlal Sheth[3], a Constitution Bench of this Court explained the importance of independence of judiciary

“The independence of the judiciary is a fighting faith of our Constitution… The Constitution makers, therefore, enacted several provisions designed to secure the independence of the superior judiciary by insulating it from executive or legislative control”

The importance of independent judiciary was also realized by Dr. B.R. Ambedkar, the Chairman of the Drafting Committee. He encapsulated the kind of Judiciary that the Constitution of India would afford to the people of India in the following words:

There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself.[4]

The independence of judiciary from the executive and the legislature as well as independence of each and every judge within the Judiciary is considered as a necessary condition for free society and a Constitutional democracy[5]. An independent, judiciary is crucial to sustain the democratic political system adopted in India[6]. It is not the intention that powers of judiciary should be passed on or shared by the Executive or the Legislature[7]. Constitutional Scheme should aim at securing the independence of the judiciary[8].

One of the important aspect of Judiciary is that the person who will be appointed as a judge, should be a person worthy of such appointment. His appointment should be solely on the basis of his credentials, and Judiciary should have ample opportunity to adjudge the person’s credentials. The opinion of Judiciary should be taken into account and adhered to in this regard.

It is this aspect which is violated by the amendment act. Before the enactment of the amendment act, the appointment of judges was done by the collegium system. The President use to appoint the judge, in consultation with the Chief Justice of India and other judges of the Supreme Court. In this process of consultation, the opinion of Chief Justice was given primacy.

However, according to the amendment act, this whole procedure is changed.

The amendment act, lays down constitution of National Judicial Appointments Commission (henceforth – NJAC), and gives constitutional power to NJAC to recommend the judges. Clause 2 of Article 124 is amended in such a way that, the President can appoint judges only if NJAC recommends such appointments. There is no inclusion of giving primacy to the opinion of the Judiciary. The composition of NJAC do consist of members from Judiciary, however, the composition is just nominal.

The composition of the commission is such that it negates the independence of judiciary. Article 124(A) (1) talks about it. The number of judicial members is restricted to only fifty percent of the strength. The other members consist of Union Minister in charge of Law and Justice, and two eminent persons who are to be nominated by a separate committee. There is no judicial criterion for these nominations hence any person from non-judicial background could also be selected.

This provision provides constitutional validity to nominate any person who is member of the executive. Hence, a commission which has equal number of members from the executive and judiciary is valid. Moreover, further provisions have been laid down that no act or proceeding of NJCA shall be questioned or invalidated merely on the ground of existence of any vacancy or defect in the constitution of the commission[9]. This further dilutes the independence as a decision taken by the commission consisting of only three executive members would be constitutionally valid. There is no provision for giving primacy to the opinion of Chief Justice of India. It is only the members of the judiciary which should have the maximum opportunity for adjudging the ability and traits of the prospective candidates[10] and thus, it is the judiciary which should be ascribed a more significant role in the appointment of judges[11]. However, this is not followed in the provisions of the amendment act, hence violating the independence of Judiciary.

[1] AIR1982SC149

[2] (1993) 4 SCC 441

[3] 1977 (4) SCC 193

[4] INDEPENDENCE OF THE JUDICIARY, By S S NAGANAND, Sri PGC Chengappa Memorial Lecture

[5] Part V – The Union – Chap

[6] Subhash Sharman v Union of India, AIR 1991 SC 631

[7] Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1

[8] AC Thalwal v. High Court of Himachal Pradesh (2000) 7 SCC 1.

[9] Article 124(A)(2) of the Amendment Act

[10] In Re: Appointment and Transfer of Judges AIR 1999 SC 1;Supreme Court Advocates-on Record Association and another v. Union of India AIR 1994 SC 268

[11] Supreme Court Advocates- on Record Association and another v. Union of India, AIR 1994 SC 268

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