Tug of war between judiciary and executive

Here’s a look at the timeline of events in the past two years since the NJAC act was enacted. Resistance to implement the Act carries on.

First, a move to replace the cosy collegium

NJAC Act was enacted in December 2014 to replace the two-decade old Collegium system of appointing judges to the higher judiciary with a panel comprising the CJI, two SC judges, Law Minister and two eminent persons.

Apex Court judges against cessation of Collegium

On Oct 16, 2015, SC struck down the Act passed by Parliament delivering a 4-1 verdict favouring continuing with the Collegium system, in which the executive would have no role at all in appointing judges

SC tells Centre to Draft MoP for appointment of judges

In the face of a standoff with the govt, the Court advised it to frame a draft Memorandum of Procedure (MOP) for future appointments in the higher judiciary. MOP was to be an improvement on the Collegium

The day when CJI broke down in front of the PM

On April 24 this year, CJI TS Thakur broke down in front of PM Modi at a conference and lamented “inaction” by the executive in increasing the number of judges. He urged the PM to ‘rise to the occasion’.

 One for Openness

• Justice Jasti Chelameswar wrote an equally strongly-worded dissenting verdict against the collegium system. He upheld the NJAC Act
   
• He said it is “empirically flawed” to say that the ‘primacy of the judiciary’ on the matter of appointment of judges is a basic feature of Constitution.
   
• The judge took strong issue with the majority verdict’s contention that the collegium system is an open system. “There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become the Chief Justice of India,” he said.
   
• “To hold that govt should be totally excluded from the appointment process would be wholly illogical and inconsistent with foundations of theory of democracy and a doctrinal heresy,” he said, adding the AG was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances.

“It is clear that there is a complete comity of purpose between the judiciary and the political-executive in the matter of selection and appointment of High Court Judges. As views are exchanged in writing, views and counterviews are in black and white. Nothing happens secretly…,” said Justice J S Khehar, heading the five-judge Constitution bench.