A fruitful friction between the executive and the judiciary is welcome in a democracy. But an outright confrontation becomes a cause of concern for the doctrine of separation of powers.
The distrust emerged in 1970s when Ms Indira Gandhi asked for committed judiciary, committed press and committed bureaucracy. But the supersession of judges followed the speech and it led to the emergence of collegium system after the third judges case in 1998.
Since the striking down of the 99th Constitutional Amendment (National Judicial Appointments Commission Act) by the judiciary and the subsequent friction over the Memorandum of Procedure (MoP) for the appointments of the judges to the higher judiciary, the distrust amongst the two organs of the State has been widening.
This distrust has managed to take the shape of struggle for power. Judiciary believes that the Government has not fully reconciled to the NJAC judgement yet and thereby it is creating roadblocks for the judicial appointments.
Supreme Court obliged the issues with the collegium and therefore acknowledged the need for discussions over the MoP, which was ultimately left for the Government to decide.
But the Supreme Court did not clarify that until the new MoP was put in place, the old system would continue. Hence, the Government now uses this as a reason for sitting on appointments. The Supreme Court also has a duty to see that a proper MoP is in place as it should not take 10 months of deadlock between the two sides to decide on this issue. A direct table for negotiations should be found among all the members of the collegium and the senior members of the Government so that this is threashed out once and for all.
The real issue at hand is not about who appoints the judges, rather it is about how the judges should be appointed whether under the NJAC system or the collegium system. Even if collegium system continues, the Supreme Court should ensure transparency. An elected Government has a legitimate say in the enire system and if it does not have any say, it would try to achieve it indirectly.
Executive has to ensure that it is not going to curb judiciary’s independence and the judiciary has to ensure that it alone cannot safeguard democracy. The doctrine of separation of powers must be adhered by all branches of the State.