ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Court vs Government

Independence of the judiciary is not the issue in the current stand-off; it is control over appointments.

The decision of the Supreme Court striking down the Constitution 99th Amendment and the National Judicial Appointments Commission (NJAC) marks a high confrontation level between the executive and the judiciary. One of the first actions of the Narendra Modi government was to bring into being the NJAC to make appointments to the higher judiciary. The NJAC consisted of the Chief Justice of India (CJI), his two senior-most colleagues, the union law minister and two eminent persons. The last were to be chosen by the Prime Minister, the CJI and the leader of the opposition. This was to replace the collegium system by which the judiciary had control over these appointments. Five judges have negated these enactments of a unanimous Parliament and 20 assemblies, and have sought to revert to the collegium system. It is unlikely that the issue will now be treated as settled.

The government has long nursed a grievance about being elbowed out of the scheme for appointment of judges to the Supreme Court and high courts. It has a point. The Constitution envisaged that the CJI was to be consulted by the President in the matter of appointment of judges to the Supreme Court and high courts. In 1993, the Supreme Court read consultation as concurrence, formulated a collegium of its senior-most judges and gave it the ultimate say. The process involved consultation with the government, but did not require its concurrence. The shoe was on the other foot.

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