A constant tussle has emerged between the Executive and the Judiciary over the provisions of appointment of High Court and Supreme Court judges.
Last year, the NJAC was declared unconstitutional by a Supreme Court bench and this year the MoP that will lead to creating a clear criteria for appointment of judges has not been finalized yet.
This has led to 475 high court judge appointments vacant, an unprecedented number. This is damaging the delivery of justice for the common man and poses a threat to the justice system in the country.
The real issue boils down to which branch has the final say in the appointment of judges. As per the Judges Cases of 1993 and 1998, the collegium system was devised which vested complete power in the judiciary’s hand to appoint HC and SC judges.
This has been criticized by various sections of leading to lack of transparency, accountability and corruption in the judicial appointments. Additionally, the opaqueness of the process raises concerns over the integrity of the judicial appointments.
The NJAC was aimed at creating an updated system of appointment of judges by involving both executive and the judiciary. However, it was held unconstitutional due to the fact that judiciary would lose its ultimate power to the Executive branch.
Then, the judiciary took upon itself to reform the MoP to bring transparency and accountability in the appointment process. However, this process has become prolonged tussle because the executive has introduced a clause that it can reject appointments of judges on basis of “national security or public interest”. This again puts the finality of appointments in Executive’s hands, which is not accepted by the judiciary.