A touch of pragmatism is what the judiciary and the executive need at this juncture
What has happened?
- Union Law minister Ravi Shankar Prasad has raised following issues,
- The Supreme Court’s 2015 verdict striking down the law creating the National Judicial Appointments Commission (NJAC) reveals the judiciary’s distrust in the Prime Minister and the Law Minister
- Whether an audit is needed to determine what has been lost or gained since the collegium system was created in 1993
Author mentions that raising of such issues though relevant, should have not been made in public that too in the presence of the Chief Justice of India and his fraternity
Chief Justice Dipak Misraseemed forced into responding that the judiciary places the same trust that the Constituent Assembly had in the Prime Minister, and that the judiciary indeed recognised and respected the separation of powers enshrined in the Constitution. There was really no need for such a public affirmation of first principles in a democracy.
- Author states that following questions should not be ignored,
- whether there is real separation of powers
- Whether public interest litigation has become an avenue for the judges to give policy directives, and
- whether the country needs a better system than the present one in which judges appoint judges should be brushed aside
Flawed collegium system
The present collegium system is flawed and lacks transparency, and there is a clear need to have a better and more credible process in making judicial appointments
What can be done?
- It is best if both sides take a sensible view of the situation and sink their differences on the new procedure, even if it involves giving up a point or two that they are clinging to.
- For a start, they could both disclose the exact points on which the two sides differ so that independent experts will also have a chance to contribute to the debate.
- If it is the right to veto a recommendation that the government wants on some limited grounds, the Collegium must not be averse to considering it.