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Executive-judiciary relationship

Kashmir Times. Dated: 12/2/2017 12:32:19 AM

The central government has to maintain a balance on its relationship with the judiciary and make efforts for its independence

The phenomenon of differences between the judiciary and the executive emerging often in public domain these days is highly disappointing for the reason that the highest institution of the land, the Supreme Court has to intervene on the issue of appointments in High Courts of the country. It is unfortunate that the question of judiciary not trusting the prime and the law minister has been coming to the fore whenever any issue of appointments has cropped up during the past three and a half years. The executive has sadly risked the impression that it was putting the judiciary on the defensive whenever, the former has harped on the need to maintain the balance of power with the judiciary. A lot can be read between the lines and the executive's profound dissatisfaction with the state of play in relations between the two pillars of democracy is becoming more evident. In the recent past, some of the utterances made by the representatives of the central government have only added to the distrust of the judiciary on the executive. Union law minister Ravi Shankar Prasad is undoubtedly entitled to hold the view that 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. His question whether an audit is needed to determine what has been lost or gained since the collegium was created in 1993 is not without merit. But, it is debatable whether these issues should have been raised in public, that too in the presence of the Chief Justice of India and his fraternity. Chief Justice Dipak Misra appeared to have been forced to respond that the judiciary reposes 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 democratic system. It is sad that immediately after the current CJI took over, there was some sort of misreading on the part of the central government that fresh initiatives on filling up the vacancies in the High Court will be getting a fillip ignoring the previous standoff on this issue. There was also no need to get clarifications from either side on separation of powers for both the wings.
Apart from the healthy debate on independence of both the pillars of democracy, the contentious issues can be sorted out for maintaining a healthy relationship between the executive and the judiciary. However, it does not mean that major concerns over whether there is real separation of powers, whether public interest litigation has become an interstitial space in which judges give policy directives, and whether the country needs a better system than the present one in which judges appoint judges should be kept aside. If the present collegium system appears flawed and lacks transparency, and there is a clear need to have a better and more credible process in making judicial appointments. It is clear that differences over formulating a fresh Memorandum of Procedure for appointments are casting a shadow on the relationship between the two wings. It is best if both sides take a pragmatic 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 fresh start, they could both put forward 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 should not be averse to considering it. Resolution of this matter should be done without any further delay. At one point of time, when the central government mooted inclusion of independent members to be included in the collegiums, this was acceptable to the judiciary. This was a major bone of contention between the two institutions and the law on NJAC was struck down by the Supreme Court. The centre also has to accept the fact that Supreme Court's interpretation on the issue of right to privacy on Public Interest Litigation was keeping in consideration the larger interest of the citizens of this country. In other cases of public importance, the SC directions have to be accepted by the executive when they have come from the full or a larger bench of the highest court. The executive should not harbour any misconceptions on the powers of the SC. These issues should not come in the way of resolving the issues regarding appointments under the new collegium.