Judiciary & the executive

Judiciary & the executive

On 11 Feb 17, the Hindu Huddle hosted Union Minister for Law & Justice and Information Technology, in conversation with Ms. Nidhi Razdan, Editor NDTV.

Is there a face-off between these pillars of our democracy?

On 11 Feb 17, the Hindu Huddle hosted Union Minister for Law & Justice and Information Technology, in conversation with Ms. Nidhi Razdan, Editor NDTV.

Why Did the CJI Cry?

The central issue of difference between the Judiciary and Executive, was delay in the appointment of Judges. Ms. Razdan recollected that on 24 April 2016, the then CJI TS Thakur had broken down, while speaking at a conference of Chief Justices & Chief Ministers, also attended by the PM. The CJI was vexed with the challenge that cases were piling up and there weren’t enough judges to hear them. He lamented that though in 1987, the National Law Commission had recommended increasing the number of judges from the present 21,000 to 40,000, nothing had moved. Successive governments had not increased the strength of judges and the common man’s faith in the Indian Judiciary, was at an all-time low.

Are there Differences Between the Judiciary and Executive on the NJAC?

The National Judicial Appointments Commission (NJAC) was a proposed body, which would have been responsible for the appointment & transfer of judges, to the higher judiciary of India. On 13 & 14 Aug 2014, the NJAC Act and the 99th Amendment to the Constitution of India, was passed by the Lok Sabha and Rajya Sabha, respectively. The NJAC would have replaced the current Collegium System for appointment of judges. The legislation was ratified by 16 state assemblies, assented by the President of India and came into force, on 13 April 2015. However, on 16 Oct 2015, the Constitutional Bench of the Supreme Court, by 4:1 majority, up-held the earlier collegium system and struck down the NJAC, as unconstitutional.

The honorable Minister for Law & Justice, assured his commitment to the Constitution of India and to the Judiciary. He said he acknowledged the right of the Supreme Court to strike down legislation including the NJAC, if in their opinion it was unconstitutional. He pointed out that the Supreme Court had objected to the Law Minister being on the panel for judicial appointments. The learned bench had perceived a conflict of interest, since the court would be required to hear litigation against the government, as well. He also brought out that the Supreme Court, while delivering its judgement and reinstating the Collegium System, had admitted that Collegium was flawed and recommended that the Government propose a new system. He also pointed out that prior to the adoption of the Collegium System in 1998, the Union Law Minister was a part of the panel that appointed judges.

The Minister said he was in negotiation with the Supreme Court regarding the Memorandum of Procedure (MoP), which was yet to be finalized. He however declined to give out details of the MoP and other contentious issues, saying he preferred not to discuss the issues in public domain. In response to a query on national security, he said that intelligence inputs may not be put down on file but the same should be considered, while making appointments.


Despite persistent and incisive questioning by Ms. Nidhi Razdan, the honorable Minister was guarded in his responses. The striking down of the NJAC by the Supreme Court, may have been an embarrassment to the government but the national judicial process should not be held hostage, to a face-off between the Executive and the Judiciary. Appointing judges on time and increasing the number of judges, in accordance with the National Law Commission recommendations, would only strengthen our country. At least on both these issues, Judiciary and Executive should leave their differences behind and ensure earliest implementation.

Subversion is a practiced intelligence procedure, to subvert the loyalty of a person (target) within his organization, so as to render that person ineffective. Unwritten intelligence inputs have little responsibility and virtually no accountability, Governments may be well-advised to resist giving importance to unverifiable reports.