ESL Blogs

Even after stringent opposition from higher Judiciary, the JAC bill is all set to be passed by the parliament. It has already been passed from Lok Sabha and will get the required 2/3 votes in Rajya Sabha as well. It clearly shows that, parties may not be united for FDI in insurance (which only need ½ votes) and which is already much debated but they are united on JAC bill.
Judiciary has its own reservations and concerns, which can’t be ignored completely. But as always, truth has many facets and it’s also a true that there was hue and cry against collegiums system. Should executive be part of judicial appointments? And if yes then how can we make it possible without comprising with the independence of the judiciary? These are some of the really tough question in front of Indian democracy.
If we go in a little history of this contentious issue which has created fears of Constitutional crisis we can get a better glimpse. As per Article 124 or 217 it’s the president who is going to appoint the judges of the Supreme courts and High courts, in consultation with the judges of Supreme courts, concerned High courts and CJI as he deems fit.
This system actually worked fairly well for the next 2 decades of the independence. In fact only on the 7 occasion out of 350 executive sent back the recommendation of the CJI. But during the era of Indra Gandhi there was biasing in the appointment of Judges on the basis of ideology. It happened because concurrence was not binding to the President of India as per the First Judges case 1983.
And what happened with K.S Hegde on his historical decision of Keshwanand Bharti case vs State of Kerela (Basic structure doctrine) is well known to everyone. The doctrine of “basic structure” was a land mark decision in the history of Indian judiciary. Only on the basis of this doctrine, judiciary stopped executive from taking discretionary appointments in second judges case (1992). These decisions laid the foundation of collegiums and made the recommendation binding to the president.
Since then Judiciary is completely independent of executive in its higher appointments. By the time it got rid of the executive pressure/interference as well. But with time questions on nepotism and competence were raised in higher judiciary. Also arguments like “none of the contemporary democracy follows the system collegiums as followed by India” were given (though in Japan also Judges appoints Judges). In all the democracies there is some say of executive as well, in appointments.
No one can deny the fact that the recent decision of the SC’s and HC’s were a bitter pill for the executive and parliament on times. Whether it was about disclosing the personal information before giving nomination in legislative election or about debarring from election if convicted or about NOTA. There was resentment in parties on this judicial activism. In the recent times Judiciary is also accused of interfering in the policy making decisions. 2 G case, Coal gate and CWC are some of them and RTI has made it worse for the corrupt politicians.
But if we go in little depth of these recent developments we will find that there existed a political vacuum in the policy making arena. Corruption was on its height and executive was weak in the Manmohan’s era. And Judiciary just tried to fill this vacuum by the helps of PIL’s and suo moto (eg. on CNG issue) so that public retain their belief on the Indian democracy. In that way it served a good purpose.
Now when government has been changed and wants to get independence from judicial bottlenecks through passing this bill. NDA government is in hurry and has not taken Judiciary in proper confidence before drafting it. In such a situation clamor of judges is genuine. Though a good lobby of lawyers are supporting this bill because there is a record that lawyers are not generally appointed as Judges of higher courts by the collegiums. 
The voice of executive in judicial appointment is widely accepted and practiced concept/phenomenon all over the democratic world. In the proposed commission of 6 members, there are 3 members of SC, including CJI as its chairman. One law minster and 2 eminent personalities (out of which one should be from minority or SC, STs, or woman) will be chosen by a separate commission (PM, Leader of Opposition and CJI). But the definition of eminent personality remains obscure. Although veto power is not given to Law minister, as there is a need of at least 2 members against the proposed appointments to drop the name (thanks to Congress as opposition party here).
Now the question remains how will Judiciary take it? Can it be considered as breach of basic structure doctrine (as Independence of Judiciary is a part of it)? It would have been better, if they had a presidential reference before passing the bill using article 143.
How long and how well this system of appointment will work in the course of time is a matter of discussion in itself. Difference in opinion (as can be seen between Judiciary and Executive) is one of the basic features of democracy. But at the last one should not forget that Executive and Judiciary are the two most important pillars of the democracy and it’s the judiciary which has the power of “judicial review” on the name of final interpreter of constitution.