Paras Nath Singh for BeyondHeadlines
The position and function of the judiciary in a constitutional democracy is both pivotal and critical. The rule of law is the foundation feature of our Constitution, so also the right to obtain judicial redress. It is through the court that the rule of law reveals its meaningful content. The heart and core of a democracy lies in the judicial process.
The administration of justice is the function of the court and justice is administered according to the law. All these essence can only be achieved when judiciary is free from any direct or indirect control of legislature and executive.
In S.P. Gupta v. Union of India, 1981 Suppl. 87, Supreme Court held that: “The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law under the Constitution; it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law thereby making the rule of law meaningful and effective.”
At present appointment of judges to the higher judiciary is being carried out through the collegium system consisting of four senior most judges of the Supreme Court and Chief Justice of the India. Further, under the present collegium system appointment of the judges to the higher judiciary require unanimously decision of the collegium.
Initially, the power to appoint judges vested in the executive. That, now, rests with the chief justice and the senior judges of the court. The constitutional scheme now stands amended with the ‘concurrence’ instead of ‘consultation’ of collegium being made mandatory for the President to make any appointment of judges in the apex court and the high courts. The votaries of the present system regard it as a manifestation of the constitutional principles of separation of power. Besides, they believe that it also reinforces the independence of judiciary.
Though there have been number of cases wherein cold war among the judges of the collegium has been reported and seen. Moreover, there are number of incidences are available which shows favouritism and nepotism while making any appointment of the judges in the higher judiciary by the collegium. Nevertheless, the collegiums system is much better than the proposed government’s move to bring Judicial Appointment Commission. One of the best essences of the collegium system is that it almost provides no space for the external encroachment in the functioning of the judiciary and hence the independency of the judiciary remains sustained which is a bulwark of any democracy.
Recently the President of Bar Association of India has raised questions on the way the Centre Government brought the Judicial Appointment Bill “without” taking members of judicial fraternity into confidence and “rushed” it through in Rajya Sabha. He said they never received any response from the law minister on the letter datedApril 17 by top jurists of the country seeking a draft copy of the bill. Further, CJI went one step further and said that government and its agencies have a say in the present collegium system and their views are also taken into consideration for appointment of judges. Justice Sathasivam said that no name is finalised until it gets clearance from the law minister, the Prime Minister and the President and in the whole mechanism, inputs from intelligence bureau, respective high courts and eminent people like sons of the soil, are taken into consideration.
If the present collegium system gets scrapped through the proposed Judicial Appointment Commission then there are very chances that the independency of the Judiciary may compromise and it can come into the grip of the Government. It is pertinent to mention here that every law is opened for the judicial scrutiny. Therefore, even this bill comes into the existence in the form of law. No one can deny that it has to go through the test of constitutional validity in the Supreme Court.
