By Shalvi Singh, WBNUJS, Kolkata.

Under the doctrine of the separation of powers, the judiciary generally does not make the law (which is the responsibility of the legislature) or enforce the law (which is the responsibility of the executive), rather it interprets the law. Judicial independence is one of the features of ‘Rule of Law’ as popularised by A.V. Dicey. Independence of judiciary from the executive and the legislature is necessary for democracy and free society. The main idea behind providing separation of powers is that it acts as a system of checks and balances and thereby reduces the extent of arbitrary power being exercised by any organ of governance. Independence of judiciary involves two aspects namely independence of the judiciary as an institution and independence of the members of the judiciary. The former is brought about by giving security of tenure and the latter is brought about by separation of powers.

In the recent years, it has been observed that the judiciary is overstepping its powers. Dr. B.R. Ambedkar was of the opinion that “the judiciary must both be independent of the executive and must also be competent in itself. Judiciary keeps a check on the acts of the executive and the legislature but the question remains who scrutinises the acts of the judiciary? A probability exists that the judiciary would not do something which it thinks is against its interest. Even though the judges are men of high repute and are eminent personnel, being humans, they are not infallible. The rigorous impeachment process which is provided in the Constitution, makes it very difficult to remove a tainted judge. Furthermore, the Court has powerful tools like ‘contempt of court’ for punishing those individuals who criticize the Courts. It is high time we get clean judges in black robes. With the recent judgement of the Supreme Court declaring NJAC unconstitutional, the opaque collegium system is there to stay. It is important to note here that the provision for a collegium system was not expressly present in the Constitution. It was through the interpretation of Art. 124 done by the Supreme Court that this system came into practice. The 5 judge bench of the Supreme Court has held NJAC unconstitutional because it is against the doctrine of separation of powers which forms a part of the basic structure of the Constitution. According to the Court, involving Executive in the appointment process will leave a scope for executive interference in the appointment procedure.

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It is generally presumed that whatever the legislature and the executive do is for the benefit and welfare of the people. It is only when they do not perform their duty properly that the role of the judiciary comes into play. These organs deal with making important policy decisions and maintain public order in the Country. When the people of the Country trust their elected representatives, why is it so that in the appointment process for judges, these two organs of the government are seen with suspicion? They bother for the people of the country as much as the judiciary does. To say that in judicial appointment process the executive will not perform its duty properly is fallacious. It was never the intention of the Constitution makers that absolute power should be entrusted in any one organ of governance. Collegium system adds to judicial autocracy and nepotism as the whole appointment process is carried on by the judges themselves. If we have a look at the procedure of appointment being followed in the west, one observes that in the U.S., where the doctrine of separation of powers has been explicitly provided under their Constitution, the process of selection of judges is entirely political. Similarly, in Britain, only 5 people out of the 15 membered Judicial Appointment Commission (JAC) are judges. Also, the head of the JAC is a lay person and not a Judge.

In the current collegium system, the President has little say in the appointment process as he is bound by the recommendation given by the collegium comprising of judges. By making the appointment process a total judicial function, the court assumes that ‘judicial primacy’ in the appointment procedure is a basic feature of the Constitution. This assumption is totally flawed, as in doing so, the court forgets that the principle of checks and balances is also an equally important part of a democracy. It ensures that any arbitrary power does not exist in the hands of any one organ of the government. Absolute independence of the judiciary never existed in the Constitution. In a democratic country like ours it is necessary that all the three organs of governance i.e. the legislature, the executive and the judiciary should work in tandem with each other. Giving supremacy to any of these organs will disrupt this balance and in a democracy, this is unconscionable.

The author feels that judicial independence should come with an antidote of judicial accountability. As the saying goes ‘power corrupts man and absolute power corrupts absolutely’, some sort of judicial accountability should be present in the system which keeps a check on the power of the judiciary. Judicial accountability also promotes public confidence in the judiciary. Incidents of dubious appointments have occurred in the past. “The appointment of judges into the superior courts is probably the country’s best kept secret.  Justice Chelameswar in his dissenting opinion has rightly remarked that “transparency is a vital factor in constitutional governance as it is an aspect of rationality.” The recent judgment on NJAC makes us think that if not NJAC then what is the next better alternative? If NJAC is not free of flaws then neither is the opaque collegium system. To conclude, the author would like to quote Justice Chelameswar, “all power could be misused including judicial power. The remedy is not to deny grant of power but to structure it so as to eliminate the potential for abuse.”

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