Separation of powers

A historic judgement by the Supreme Court has held the National Judicial Appointments Commission (NJAC) Act 2014 unconstitutional. The Supreme Court has been one of the reasons for the survival of our democracy. Governments have tried to form the NJAC in order to to extend the presence of the executive in the judiciary. India is a great democracy where the principle of separation of powers is part of the basic structure of the Constitution, which cannot be overruled in any condition. If the judiciary does not have a role in choosing the executive, then the executive must also not interfere in judicial appointments. The Supreme Court, being a custodian of the Fundamental Rights of the citizens, needs to be given complete independence. However, as suggested, there is need to refine the collegium system, making it more transparent and accountable.

Santosh Trivedi, New Delhi

In the striking down of the Constitution’s 99th Amendment and also the NJAC Act by holding the same as being violative of the basic structure of the Constitution, the Supreme Court has effectively restored the independence of the higher judiciary. The verdict has proved that the NJAC cannot override the prerogative of the higher judiciary to interpret the laws. This also re-establishes that acts of the legislature, currently overwhelmed by the numerical strength of the ruling party, can be held accountable in courts of law.

Rajender Samala, Hyderabad

The disappointing judgment runs the risk of undermining the institutional credibility of a court that leaves no stone unturned when it comes to defining and enforcing the principles of accountability and transparency elsewhere. It is to be noted that the principle of ‘independence of judiciary’ thrives on two themes: one of content and the other of context. The former is primarily concerned with the degree of inner freedom and liberty enjoyed by a judge while giving expression to his voice while the latter defines the contextual setting in which he is supposed to work. The NJAC, as a multi-member body having representation from judicial and non-judicial institutions, dealt with the external realm only, aimed at bringing an element of transparency in the appointment of judges. It was based on the ‘doctrine of checks and balances’ and did not intend to interfere with the independence of judges. This judgment also reminds us about how judges once made an aborted attempt to keep the judiciary beyond the purview of RTI. The Constitution of India does not at all provide for ‘judicial supremacy’ and courts are also accountable.

Sajjan Singh, Jaipur

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Printable version | Aug 4, 2021 1:21:20 AM | https://www.thehindu.com/opinion/letters/separation-of-powers/article7770901.ece

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