Denting democracy – On judicial appointments

Source– The post is based on the article “Denting democracy” published in the Business Standard on 7th December 2022.

Syllabus: GS2- Judiciary

Relevance– Judicial appointment

News– The article explains the issue of appointment of judges by Collegium.

Recently, a Bench of the SC expressed anguish at the government sitting on Collegium recommendations for fresh appointments.

What is the constitutional provision related to appointment of judges?[Text Wrapping Break]Article 124(2) of constitution says that every judge of SC shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of SC and of HCs as the President may deem necessary for the purpose. It also provides that in the case of appointment of judges other than chief justice, the chief justice of India shall always be consulted.

Which article of constitution was used by SC for the collegium system?

The Supreme Court assumes the role of chief appointer of judges by using a special provision of the constitution called Article 142(1). According to this provision the Supreme Court may pass such judgement as is necessary for doing complete justice. It shall be enforceable throughout the territory of India in such a manner as may be prescribed by law made by Parliament.

This provision allows SC not only to interpret the law but also write its own law.

Which instances show the tendency of the SC to assume law making powers?

It is willing to entertain all kinds of alleged PILs.

It has passed judgement ranging from validity of government decision on GM mustard to vaccine policy to additional taxes on SUVs entering Delhi.

Recently, it asked whether ECs can be appointed by a three member panel.

What does it signify?

There is a strong case to believe that the higher judiciary is becoming authoritarian and unaccountable. The delicate system of checks and balances has been set aside by the judiciary.

There is a strong case for abolishing article 142 amending article 124 to clearly reflect a reasonable role for executive and Parliament in selecting judges. The government must obtain a political consensus on this.

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