The foundation of our democracy is the rule of law and that means that we must have an independent judiciary, judges who can make decisions regardless of the political winds. “
A great spirit put it right: “The foundation of our democracy is the rule of law and that means that we must have an independent judiciary, judges who can make decisions regardless of the political winds.”
Our country’s judicial system has been on the news for quite some time, thanks to the great efforts and prudence of the incumbent Chief Justice of India NV Ramana. In the past month, the quorum system has recommended over a hundred appointments, multiple transfers, increases in judges, attorneys, and chief magistrates. It is worth noting that the current colleges began their work with a historic and successful referral of nine new judges to the Supreme Court of India, of whom there are now a total of 31 judges. This recommendation was approved by the government within a few days. in addition, this achievement quickly followed the recommendation of 68 names to various high courts. This is a joyful moment for the whole country, luckily the same thing happened all at once. It’s a welcome sign of judicial-executive cooperation: the President signed the appointments within days. The college system, led by NV Ramanais, is moving rapidly to fill vacancies to strengthen the judiciary. It is also a good understanding that Judge AA Kureshi, whose transfer should be recommended, found himself in the middle of a prolonged stalemate between the college and the government. about his first appointment.
All of this indicates a resolve within quorums to better address the perennial problem of vacancies. The presiding judge described the appointment of judges as an “ongoing process”. The colleges intend to “do justice to the Herculean task of filling 41% of the posts in all higher courts,” he said.
An overview of the college system
The procedure for appointing judges prior to the 99th constitutional amendment was different. The Supreme Court justices were appointed by the President in agreement with the Chief Justice of India. In the case of the transfer of judges used in Article 124 of the Constitution, the President must consult the Chief Justice of India. The question was the interpretation of the word “advice”. The court said it was only consultation, not agreement. The President was under no obligation to take the opinion of the Chief Justice of India and the judges.
In the second case of delegation of judges, the Supreme Court unanimously agreed to the meaning of the term “consultation” which means consensus and the Supreme Court of India should prevail. This led to the birth of the college system. In the transfer of judges procedure 3. the Supreme Court was referred to under Article 143 of the Constitution and a hearing was requested. The court made it clear that the trial requires a majority of judges to be heard, in other words, the sole opinion does not constitute a hearing. The college system has been heavily criticized not only by the government but also by civil society for its lack of transparency and accountability.
This resulted in the 99th Constitutional Amendment Act, the 2014 National Judicial Commission Act (NJAC) to replace the college system for appointing judges. However, it was rejected by the Supreme Court on the grounds that it violated the “independence of the judiciary”, ie the principles of the basic structure, since the political executive was involved in the appointment of judges.
Separation of powers is a basic principle of Indian constitutionalism. This idea is the guarantee of an autonomous judiciary. To this end, the process of appointing and transferring judges becomes important. But the question of the balance between the sovereign appointment function and the need to guarantee an independent judiciary has long been preoccupying the republic. The creators of the constitution argued over this question for many days. Ultimately, they accepted what Dr. BR Ambedkar referred to as “middle ground”. In other words, the pandemic has exacerbated the accumulation of cases in the courts, and courts are now overwhelmed with their work. The steps that the Chief Justice of India NV Ramana has taken to improve the judicial process in India are part of the system. Again it looks like confidence building among the masses, the last resort for a citizen is the court.
The author is a law student