Recently, the Vice-President, Jagdeep Dhankhar posed the question, “Can the Judiciary overrule the will of the people that are represented in the Parliament?” This comes amidst the ongoing row over the process of appointment of a judge.
It was in reference to Supreme Court 2015 judgement, striking down the National Judicial Appointments Commission (NJAC) Act.
The vice-president has underlined that the judiciary cannot become legislature or executives by diminishing their power as any incursion by one organ into the others will upset the process of governance.
We shall be looking at the Vice President’s comments as a part of the larger debate over the separation of powers of each pillar of democracy – the Executive, Legislature and Judiciary.
In 2014, the National Democratic Alliance government brought the NJAC Act in an attempt to change the system of appointment of judges.
The NJAC was a proposed body, which would have been responsible for the appointment and transfer of judges to the higher judiciary.
The Supreme Court 2015 struck down the NJAC Act on the ground that it posed a threat to the independence of the judiciary. Also, it violates the principle of separation of powers between the executive and the judiciary, which is a basic feature of the Constitution.
The collegium system is also referred to as ‘judges selecting judges’.
Under this system, the Chief Justice of India (CJI) and four senior-most judges recommend appointments to higher judiciary and transfers of judges.
This system has its origin in three judgments made by the Supreme Court, commonly known as the “Three Judges Cases”.
The recommendations of the Collegium are binding on the Central Government if the Collegium sends the names of the judges/lawyers to the government for the second time.
Issues Related to the Collegium System
Exclusion of Executive: The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy.
Chances of Favouritism and Nepotism: It gives rise to the non-transparency of the judicial system, which is very harmful to the regulation of law and order in the country.
Close-Door Mechanism: Critics have pointed out that this system does not involve any official secretariat.
NJAC is a Missed opportunity
National Judicial Appointments Commission (NJAC) could guarantee the independence of the system from inappropriate politicization, strengthen the quality of appointments, enhance the fairness of the selection process, promote diversity in the composition of the judiciary, and rebuild public confidence in the system.
Can the will of the people reflected in the parliament be undone by the Judiciary?
Parliamentary legislation in theory is supposed to reflect the will of the people. When Parliament enacts it is the will of the people expressed through the representatives of the people.
Our constitution provides for a parliamentary form of governance and it doesn’t create a parliament with unlimited power like the British Parliament.
Article 13: It limits the law-making power of the Parliament, that they cannot make a law inconsistent with part-III of the constitution.
Judicial Review: The power of the Supreme Court of India to enforce these Rights is derived from Article 32 of the Constitution and it is expressly providing for it.
Limited Government: Wherever there is a limited government and the powers of the legislatures are limited, either by Fundamental rights or the area of legislation (area of competence), the court has struck-down laws and will continue to strike down laws.
In a limited government the parliament does what it can do, the court finally is the arbiter of what are the limits on the powers of parliament acting under the constitution.
The court has struck down legislation in the past, for example: in Sankari Prasad case (1951), Minerva Mills case (1980) or Kesavananda Bharti case (1973). It has also expanded the scope of judicial review.
Constitutional Supremacy vs Parliamentary Sovereignty
The doctrine of parliamentary sovereignty is associated with the British Parliament, whereas the principle of judicial supremacy is associated with the American Supreme Court.
India bears the supremacy of the Constitution and provides for a balance between the various pillars.
But on a few occasions, there have been encroachments made by the constitutional organs among themselves, which diminishes the principle of separation of power.
Critical areas that need to be addressed:
Judges choosing judges: This idea is fundamentally flawed as it may compromise or damage the basic structure of constitution. Bringing in the consultative mechnishm in the appointment of judge has an immense potential which is yet to be realised.
Judges per million ratios: We should possibly have twice as many judges per million as compared to the united states or the United Kingdom. It may improve the “rate of disposal” to clear the backlog cases.
Vacant positions in Judiciary: Even the existing vacancies in the judiciary, because the salaries and conditions of work are dismally low. But some judges are willing to make sacrifices.
Process of making judges: We can have a law college/law course where one is trained from day one to be a judge and then pass the exam to be a potential member of the judiciary. Later one can apply for a judges’ job or become a lawyer.