Abstract
Now, in a recent development the Hon’ble Supreme Court of India has struck down a central law aimed at forming a National Judicial Appointment Commission which was enacted vis. a vis. the Constitution (Ninety-Ninth Amendment) Act, 2014. It may seem like another quotidian judgment delivered by the Hon’ble Court but it actually is the biggest crisis in the working of Indian model of separation of powers till date. It may seem like any other judgment of the Hon’ble court declaring ultra vires a law made by the legislature but in effect it undermines the competence of the legislature and the executive and gives a severe blow to the system of checks and balances as envisaged by our constitution makers. Was the court right in doing so? What were the reasons for which the court was forced to do so? Is the continuous interference in policy making on part of the court viable? Is it hampering the power of other organs of the state or just exercising the power of judicial review? Is it correct jurisprudentially and if not then what needs to be done? These are the sort of questions the author aims to answer by the medium of this present article for which the author has analyzed the situation in hand by using doctrines, case laws and his own opinions. In the end the author will try to suggest some workable solutions so that a system of checks and balances is maintained without hampering the independence of any of the organs of state.
Highlights
In a recent development the Hon’ble Supreme Court of India has struck down a central law aimed at forming a National Judicial Appointment Commission which was enacted vis. a vis. the Constitution (Ninety-Ninth Amendment) Act, 2014
It is important to see whether an arrangement which gives equal representation to all the organs of the state can be rejected on the argument of independence of the judiciary and keeping on a pyre the system of checks and balances and separation of powers we should continue with the collegiums system or is it necessary to bring in a workable judicio-politico arrangement
The prophecy by the great constitutionalist appears to be transforming itself in a truth today as we can see by total negation of the separation of powers
Summary
His judgment was called the “only light in gloom” by Anil Divan[11] He is the kind of judge who never left alone the spirit of “constitutionalism” or “rule of law” even when he was in minority (Habeas Corpus judgment was delivered by an astonishing 4:1 majority), but he later joined politics, does that mean that he was rigged during the judgment? Speaking independence of the judiciary will remain intact and sacrosanct till the judges who hold such respectable positions of justice keep in mind the aim with which they joined the profession “the dispensation of justice”, it is of very less importance whether the executive controls it or not Another logical argument is that even if collegiums appoint a judge but the judge is not committed to the cause of justice no one can compel him to dispense justice.
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