Face-off Judiciary Versus Executive

While the SC rejected the Modi government’s proposed National Judicial Appointments Commission to replace the existing Collegium system for appointment of judges to higher courts, the debate is still far from over…

- Madhavi Gokhlay

At last count, there were more than 400 vacancies in high courts across the country against a sanctioned capacity of 1,016, which essentially means they have been functioning at half their strength for the longest time. Not surprisingly, litigants continue to face disappointing delays even as the pendency of cases rises. Notwithstanding, the judiciary and the reigning government continue to be at loggerheads over the issue of appointment of judges to higher courts.

Since 1993, we’ve had the Collegium system where the Chief Justice of India (CJI) and a forum of four senior-most judges of the Supreme Court (SC) recommend all appointments and transfers of judges to the higher judiciary. However, the system has oft come under fire for reasons such as: creating “an empire within an empire” in the SC; creating a “give and take” culture in the SC; and creating a rift between haves and have-nots.

In what has been widely perceived as a move to clip the wings of an overzealous judiciary, the Narendra Modi led government in 2014 passed the 99th Constitutional Amendment Act, 2014, and National Judicial Appointments Commission (NJAC) Act, 2014; both of which came into force April 13, 2015 onward. The idea was to establish the NJAC, a constitutional body proposed to replace the Collegium system of appointment of judges to higher courts.