Dinesh Kamath's Editorial 'The Executive-Judiciary relationship' that was published in Newsband

The Executive-Judiciary relationship

Are there differences between the executive and the judiciary? Doesn’t judiciary trust the Prime Minister to make fair judicial appointments? Is there a need to maintain the balance of power between the executive and the judiciary? Is the Union government putting the judiciary on the defensive?

The Supreme Court’s 2015 verdict striking down the law creating the National Judicial Appointments Commission (NJAC) reveals the judiciary’s distrust in the Prime Minister and the Law Minister. Should the system in which judges appoint judges be brushed aside?  Is the present system flawed and does it lack transparency? Is there a need to have a better and more credible process in making judicial appointments?

It is best if both sides take a pragmatic view of the situation and sink their differences and come up with a mutually agreeable system of appointing judges. It is best to discontinue the colonial practice of appointing practising lawyers as judges in the lower judiciary subordinate to the High Courts. All appointments to levels below the High Court ought to be on the basis of an All-India level examination. As for appointments to the High Courts and the Supreme Court no candidate should be considered qualified unless he/she either has sufficient judicial experience at lower levels or has published excellent research work in philosophy or social science in addition to possessing a degree in law and adequate experience of teaching in a law school. Practicing law as a professional ought to be considered as a disqualification.

The Supreme Court, through the Collegium decision, has usurped a right that the Constitution did not grant to them, namely the power to decide who gets to be a HC/SC judge. The right to amend the Constitution is the unquestioned prerogative of Federal and state legislatures, acting as representatives of the people.

The best thing to do would be to find the best practices from other democratic countries with respect to judicial appointments. The biggest blockers for this issue are the ego of involved parties/organizations and the mistrust against each other based on their past experiences.

There must be transparent and impartial judicial system. But, it could be possible only through the interference of independent experts and practical thoughts of citizen. So, government should give such powers to their citizens for the selection of their respective judges.

It seems both judiciary and executive do not believe in the balance of power which drags the issue to an impasse.