Separation
of power is said to be one of the most fundamental features of constitutional
setup in our country. The fountain-head of the power is the Constitution
itself. The basic reason behind this doctrine was to ensure non - interference
of other bodies of the government in the Judicial process. Now it becomes imperative
on our part to raise this question that whether the appointment of Judges
should also be kept out of the purview of the government control while conforming
to the basic principle behind the doctrine of Separation of Power? Can it be
considered feasible for India to allow the decision making body to have
absolute powers in appointment of Judges? This is something which can be
answered in both affirmative and negative. If it is in affirmative i.e if
judiciary is allowed to have absolute powers without government interference
then although it would result in providing independence to the Judiciary but at
the same time that would lead to monopoly and nepotism and this is one of the
major effects which the experts think have been resulted by the collegium
system. And if it is answered in negative, there would be a lot of government
interference without Judiciary having an upper hand in its own affairs. The
requirement of checks and balances and accountability of the judiciary would be
met but it would not allow effective functioning of the Judicial System. Therefore the call for the day is to strike a
balance between the two aspects and to come up with such parameters that seek
for reforms in the appointment process.
The
existing Collegium system has been condemned by the various experts on the
grounds that it is wholly and largely dependent on the decision taken by CJI
and four senior most Judges of the Supreme Court while appointing judges to the
Supreme Court. In the case of appointment of judges to the High Court, again
the collegiums system constitutes members only from the judiciary i.e CJI and 2
senior-most judges of the Supreme Court. This has put the process of appointment
of judges in the arena of doubt and dilemma thereby rendering it ineffective
and unjust. But the debate does not end here for the basic reason that the
Bill, 2013 proposed for setting up of Judicial Appointment Commission is equally
criticized by the legal experts and eminent jurists stating that the new
proposed collegium constituting 2 eminent persons selected by the Prime
Minister, the CJI and the Leader of Opposition would again not serve the
purpose as desired so.
Thus,
to strike a balance between the two requirements, the model must be judiciously
adopted that it not only encompasses members of the Judiciary and the
government but also people from non legal background and also other
stakeholders so that diversified forum is formed to appoint the Judges. Also,
instead of limiting the number of members of the commission to just 5, the
number should be increased to more than double of what is otherwise proposed in
the new bill so that the appointment is done by a larger group which to a great
extent diminish the possibility of arbitrariness and biased approach on the part of
the commission.
The
government should take this as an opportunity to make Judiciary as transparent
as it can by keeping a close check on the initial process i.e the decision of
who would be the upcoming set of Judges. Although prima facie it looks not more
than a mere administrative function, yet the consequences and the reach it
would lead to would to a great extent determine the future of a large number of
people who always seek to get justice. It is the duty of the Parliamentarians
to secure and safeguard the independent nature of Judiciary and this can be
done by providing a proper model for the appointment of the Judges and not by
directly interfering and taking away the powers in the pretext of formulating a
commission. It should not be made a sham process which is what the bill of 2013
is leading to.
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