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India as a democracy has adopted a parliamentary system of the government which is governed by some of the basic tenets of parliamentary democracy; chief among them is the Independence of the judiciary which is vital not only to check the other two organs of the government, but also to protect the sanctity and supremacy of the Constitution. There is therefore no question of parliamentary sovereignty as is being wryly claimed by it except to the extent that it is sovereign within the sphere which Constitution has delineated for it. It cannot exercise its powers which ultra-vires the Constitution lest, Constitution would be reduced merely to a piece of paper that is only read, but not respected. Any Country which is governed according to Rule of law with Constitutionalism deeply embedded in its psyche, cannot seek to do anything which goes against the laid down Constitutional scheme.
Carried away by this belief could have probably been the main reason that one can deduce for the time being behind the annulment of constitutional 99th Amendment and NJAC Act by the Constitutional bench of the Apex Court in its yesterday’s landmark judgment, before one reads the fine print of the judgment in detail.
What might have weighed heavily on the minds of the judges while scrutinizing the impugned Act could be the visualization of that era of Seventies that marked a visible onslaught on the independence of the judiciary inflicted on it by the Executive of the day. It was a time when executive wanted to pack the Courts with its own appointees who were held to be in sync with its ideology. The country witnessed this twice, once in 1973, when a junior judge was appointed the CJI after superseding the then three senior most justices. The event was repeated second time again in 1977. This subdued judiciary then tried to regain its lost vigour and prestige and then there was no looking back and soon we witnessed a kind of new Constitutional jurisprudence unfolding before our eyes. This heralded an era of empowerment of the common man who was hitherto been a pariah, down and out and miles away from the portal of justice. The Courts extended the long arm of justice to such marginalized and destitutes by inventing the contrivance of PILs or SALs besides expanding the scope of various listed Fundamental Rights in a manner that a surfeit of implied fundamental rights were deduced for the empowerment of the common man. The Judiciary wanted to carry on this momentum and activism in an atmosphere of complete independence and autonomy. This could have been possible only if judiciary were to have an overriding say in the appointment of the judges so that such persons could man the courts who fit the bill of competence and held dynamic approach to the changing socio-economic milieu of the country rather than to the political ideological underpinnings. To achieve this objective, the arrival of collegium system on the scene of judicial appointments was inevitable in 1993. Except for a few sporadic incidents of complaints that are bound to happen in any human operated institution after all, humans are not angels (and if they are, then probably no institution is required); this system has worked very well ever since. This is evident from the quality of judgments that have been delivered down the years at the hands of those judges who have been appointed under this collegium system.
If the government really wanted to have some change in the existing collegium system say, in the name of bringing in it some more transparency, it should have preferably consulted the relevant stakeholders (judiciary), Bar Councils etc before bringing in an entirely new bill. Doing this could have probably, provided the government with some alternative course like, reforming the existing collegium system itself, instead of throwing the baby with the bath water. This could have also saved the government from unsavoury judicial verdict which might be a bitter pill for it to swallow….
By: Pritam Sharma ProfileResourcesReport error
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