Executive vs Judiciary: When The Pillars Of Democracy Collide

Amidst the ongoing tussle between the Judiciary and the Executive, former Supreme Court judge Rohinton Fali Nariman said that if the last bastion of the judiciary falls “without independent and fearless judges”, India will enter the “abyss of a new dark age”.

Terming Union Law Minister Kiren Rijiju’s recent remarks against the collegium system “diatribe”, he said that the government "sitting on the names" of judges recommended by the collegium was “deadly against democracy".

The former apex court judge also called for a special five-judge bench to be formed and for it to pass a judgment that once a name is sent by the collegium to the government and if the latter has nothing to say within a period of 30 days, then it will be taken as it has nothing to say.

"This sitting on names is a very deadly thing against the democracy of this country. Because what you are merely doing is you are waiting for a particular collegium and hoping that the next collegium changes its mind. Appointment must be done within a reasonable time period," Justice Nariman said, adding, "It is how a constitution works. If you don't have fearless and independent judges, say goodbye...There is nothing left...As a matter of fact, according to me if finally this last bastion falls or was to fall we would enter the abyss of a new dark age, in which R K Laxman's Common Man will ask himself only one question: if the salt has lost its savour, wherewith will shall it be salted?..."
 

Nariman’s statement at Mumbai University comes almost two weeks after the Supreme Court on January 19 took an unprecedented move and uploaded the letters it sent to the Central government reiterating three names that got earlier rejected for elevation to the High Courts. According to the rules, the Central government must accept the recommendations of the Supreme Court if it sends it for the second time.  

Speaking at Friday’s event organised by Mumbai University’s Department of Law, Nariman said, “We have heard a diatribe by the Law Minister against this process (appointment of judges). Let me assure the Law Minister that there are two very basic Constitutional fundamentals that you must know. One fundamental is that, unlike the USA, a minimum of five unelected judges are trusted with the interpretation of the Constitution… And once those five or more have interpreted that basic document, it is your bounden duty as an authority under Article 144 to follow that.”

Rijiju has time and again questioned the collegium system of appointment of judges, noting that it was “opaque and not transparent”. Recently, Vice President Jagdeep Dhankar said that the striking down of the National Judicial Appointments Commission (NJAC) Act by the Supreme Court was a severe compromise of parliamentary sovereignty.

Additionally, Dhankar recently even questioned the SC judgement on the Kesavananda Bharati case in 1973 that actually fixed the basic structure doctrine.  

At this moment, Outlook revisits its issue titled 'When Pillars Collide' dated January 2, 2023, where we tried to understand the root of the tussle between the Executive and Judiciary. While writing for us Saurabh Kirpal noted, “We must, in these times, remember the lessons of the past to know that an almighty clash between the different branches of the State does not augur well for the country.”

Commenting on the collegium controversy former Justice Deepak Gupta pointed out, “While the collegium is criticised for not being transparent, the functioning of the government is totally opaque.” In the debate, we also heard a strong voice of support for collegium from Nizam Pasha who while criticising authoritarian rules noted, “But as majorities in the legislature have become absolute and power has become concentrated in the hands of one party, judicial appointments by the judiciary, even with all its opaqueness, nepotism and biases, is the only hope we have against authoritarian rule.”

The stories look at the jurisdictions and limits of both the executive and judiciary and their collision in recent times to understand how the growing rift between the two pillars is impacting the democratic fabric of Indian federalism.